Radmacher - Fettering but not ousting
When the 1973 Matrimonial Causes Act was enacted Judges were required by statute to ensure that they exercised their powers to make financial provision on divorce that "...place[d] the parties [...] in the financial position in which they would have been if the marriage had not broken down..."
This was simply unworkable and in 1984 Parliament abolished this statutory requirement; but substituted no alternative in its place.
In a democracy changes to social policy are a matter for debate by elected Members of Parliament not adjudication by an unaccountable Judiciary. With successive Governments disinclined to enter the fray the review of our 40 year old matrimonial finance legislation has been delegated to the Judiciary.
Radmacher v Granatino is the latest confirmation that the legal regulation of the family has become a matter for the Judiciary and not Parliament. Interestingly enough the only dissenting voice came from Lady Hale the sole family lawyer amongst the Supreme Court Justices.
Read the full article here.