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The ‘Sorting out Finances on Divorce’ report, published in April 2016, follows a recommendation made by the Law Commission that guidance should be prepared on the meaning of ‘financial needs’ (para 3.88). Whilst designed with litigants in person in mind, it will also provide a useful aide memoire and source of guidance for practising family lawyers and courts alike.
It turns out that needs are as an elusive a concept as fairness. It all depends. They are a ‘very broad concept’. Check out the postcode. The higher the standard of living, the more refined the notion of need becomes. Cases with a pot of up to £5m are routinely described by the courts as ‘needs cases’. The needs case is what occupies the family lawyer for most of the time, despite what the law reports might have you otherwise believe.
There are certain common building blocks to a needs case, often seemingly overlooked in the charge to a final hearing. Sometimes it appears that the imperative to actually persuade the judge gets lost in the (admittedly, now PD27A reduced) paperwork. What often gets overlooked?
1. Sensible property particulars
These need to be pitched judiciously, in the right ‘parish’ of the case. The husband’s suggested particulars for the wife, on the ‘wrong side of the tracks’ (or next to the crack den), or the wife’s equally unrealistic particulars to trade up, are not persuading the judge of anything. To make a realistic needs pitch, and to actually be persuasive, the particulars must be in the right parish. Why not brighten up the judge’s day and provide nice colour photocopies?
2. Realistic mortgage advice
Often obtained at the last minute, sometimes the wife appears bent on demonstrating that she cannot borrow anything. Everyone in the judge’s chambers knows this to be untrue; the wife just asked the high street rather than an independent broker. There are some lenders who will look at non-standard income. The court also needs to know, crucially, the monthly repayments resulting from a particular level of borrowing. If either party is going to be difficult with this kind of evidence, consider asking for a joint mortgage report at the first appointment.
3. Proper outgoings schedules
Whether in a Form E or otherwise, an outgoings schedule should be prepared with ‘the door of the court anxiety’. For quantifying maintenance, the emphasis is now firmly on meeting needs only, so the outgoings schedule must accurately describe them. The outgoings schedule is going to be pored over at a final hearing. Most lawyers will, at some point in their career, have encountered a ‘lazy-five-line’ outgoings schedule (rent, food, petrol, Sky and credit cards). These perform a woeful service to the claimant who has many more genuine needs to tell the court about. The ‘greedy-lottery-wish-list’ at the other end of the scale is also missing out on that vital opportunity to persuade the court. When drafting or settling the outgoings schedule, imagine you (personally) are going to have to defend it before your least favourite judge in the next 5 minutes. Give plenty of notice to the other side if you are seeking a capitalisation.
4. Pension reports
There are going to be an awful lot of negligence claims over the next few years concerning pension advice on divorce. Section 25 discretion will not be a big enough fig leaf for some howlers. Know the difference between legal advice and regulated financial advice, which you should not be giving. Give the client time to seek financial advice. Make sure that a pension report is asked for in appropriate cases – generally for defined benefit schemes and non-standard investments. If the judge declines the request for a report, at least you can tell your insurer/regulator that you asked.
5. The evidence
In order to comply with PD27A thought should be given at the first appointment as to what documents will need to be before the court at final hearing. Will they breach the 350 limit and does permission for a bigger bundle need to be sought and justified? The ‘matrimonial debt’ and ‘add-back’ argument (if advanced) need settling into a narrative statement, exhibiting the relevant bank statements. If your client seeks maintenance she must normally evidence reasonable attempts to ‘get a job’.
6. Open offers
FPR 2010, r 9.28 – Applicant 14 days before the final hearing; Respondent 7 days before. This rule is often honoured in the breach only. To hit this target family lawyers need to ‘front load’ their work more. If counsel is to be instructed, an early conference needs booking to discuss the realities of the case, the content of the bundle and how the client wishes their case to be put. For the leverage of persuasion, again, the open position needs to be in the right parish (make an open offer on the ‘wrong planet’ at your peril). An early and well-pitched open offer might also be helpful on an issue of costs. Think ahead.
7. The case summary
The written summary is key, oral advocacy is only part of the job these days and many financial remedy cases do not turn on the live witness evidence. The case summary may be the only document the judge reads before the case starts. Keep it as simple as circumstances permit. Make sure yours is delivered. Emailing it the day before is no guarantee in most courts that the judge will actually have seen it. Deliver by hand if necessary; just make sure the judge has it. If counsel is instructed, do so early enough to allow plenty of time for the content of the draft case summary to be prepared, discussed and approved by the client well before the day of the final hearing. Again, front load the work and don’t leave it until the door of the court is in sight.
8. The big picture
Financial remedy applications are not usually decided on the ‘nit-pick’. Have a big narrative. Stay on the main road, paint with the broad brush (the judge sometimes uses a roller) and remember that judges don’t like rummaging around in the attic of a failed marriage.
Rhys Taylor is a family law barrister based at 30 Park Place in Cardiff, South Wales and at 36 Bedford Row, London. You can follow him on Twitter @RhysTaylor32.