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Alison Hawes: Courts will lose vital flexibility if family law becomes formulaic

Date:11 SEP 2012

Alison Hawes Family Lawyer at Irwin MitchelThe introduction of a formula to bring consistency to how divorce cases are handled in the English courts could mean some of the ability for judges to base rulings on the individual circumstances of each case are lost.

A public consultation has been launched by the Law Commission to consider how financial issues should be treated during the separation process, looking specifically at:
  -   The extent to which one spouse should be required to meet the other's needs, as well as what is meant by needs;
  -   How property owned by one of the partners before the relationship, or acquired during it, should be treated during the divorce process.

Due to run until December, the consultation is also asking for views on whether the introduction of a formula to work out divorce settlements could prove beneficial.

It is vital that care is taken with plans to introduce such measures, as a mathematical approach may not mean that all factors in a divorce are properly considered.

It is right to say that litigation can be a lottery - often couples will hear the judge say that to encourage them to settle their financial affairs by agreement.

Competent specialist solicitors advise clients that the court system is a last resort and a high percentage of cases - at least 80 per cent - where such advice is given do reach a conclusion without the court being involved.

However, the discretion that the English courts have is a very valuable and unique tool that can ensure that a formula does not cause injustice to any party involved. People from all over the world who have complex affairs often try to use the English legal system to resolve divorce and financial issues because of that flexible and humane jurisdiction. 

The price of certainty and a rigid formulaic approach may lead to the loss of the balancing act that experienced judges work with to create solutions that take issues like bad behaviour, illness and business assets into account. Such factors often are so diverse that they simply do not fit into this concept.

Families are organic and unique, and a bespoke solution may bring fairness where a formula would not.  We find that the collaborative family law process can provide tailor-made solutions to relationship breakdown that are more sophisticated and lasting than any imposed by arithmetic.

However, it must be accepted that there will also be many people who will benefit, emotionally and financially, from having the certainly of applying a formula and less recourse to lawyers and the costly legal system. 

One answer could be to find the balance between the two, so there can be a blend of the best of the unique English jurisdiction and the codified approach often found in other countries across the world.

However, there remains a possibility that by introducing a formula but giving judges the power to disregard it, we may end up with a more unsatisfactory system in which divorcing couples are led to believe there is a definite outcome, only to find that a judge disagrees and imposes a different solution.

This is clearly a delicate issue and we hope that every care is taken to ensure all aspects are carefully considered.

Alison Hawes is a Partner and family law specialist at Irwin Mitchell.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.