Latest articles
Teaching Hospitals NHS Trust v DV (A Child) [2021] EWHC 1037 (Fam)
(Family Division, Cohen J, 19 April 2021)Medical Treatment – 17-year-old had form of bone cancer and required surgery For comprehensive, judicially approved coverage of every important...
Domestic Abuse Bill
Aaron Gates-Lincoln, Immigration NewsAfter years of development the Domestic Abuse Bill returned to the House of Lords in the UK on the 8th March 2021 to complete its report stage, one of the final...
Coercive control and children’s welfare in Re H-N and Others
When families come to strife, arrangements must be made for the future care of any children. In some circumstances, this means an application to the courts. These ‘private law orders’ can...
Profession: Expert Witness
The value of a family business or business interest is treated as an asset and therefore part of the matrimonial pot to be distributed when it comes to negotiating a financial settlement on divorce or...
How does a jointly held property pass on death?
When meeting with clients to discuss their succession planning, many cannot recall whether their property is held jointly as joint tenants or jointly as tenants in common. The distinction is that with...
View all articles

Financial orders after divorce: a category error?

Sep 29, 2018, 18:14 PM
Slug : PeterHarris-JulyFLJ2012
Meta Title :
Meta Keywords :
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : Jun 18, 2012, 05:43 AM
Article ID : 99183

Peter Graham Harris
Oxford Centre for Family Law and Policy, DSPI, University of Oxford

There is a strong case for providing legal certainty in the law governing the civil or criminal liability of individuals by promulgating rules that allow citizens to predict whether they are or would be liable for certain acts. However, the argument for retaining judicial discretion in disposing of cases once liability has been established (whether by way of a criminal sentence, damages or other remedy) is widely accepted as necessary to securing a just outcome in individual cases. However, in the case of financial orders on divorce there appears to be some enthusiasm for eroding judicial discretion and denying parties that element of justice in determining disputes, for example, by introducing formulae or fixed rules of division.  That apparent contradiction may arise from a failure of commentators to recognise that in most disputes about financial resources on divorce, liability (for example parenthood or marital or divorce status) is not in issue. What is in issue is the just disposal of the admitted claim given the individual facts of the case. That 'category error', it is suggested, may explain in part why many commentators argue for diminishing judicial discretion in favour of arbitrary rules in disposing of family cases, while resisting such an approach in other areas of civil as well as criminal law.

To read the rest of this article, see July [2012] Family Law journal.

To log on to Family Law Online or to request a free trial click here

Categories :
  • Articles
Tags :
Provider :
Product Bucket :
Recommend These Products
Related Articles
Load more comments
Comment by from