Financial orders after divorce: a category error?

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...

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