Rhys Taylor reflects
upon the conduct and presentation of the ‘needs’ case referred to in the Family
Justice Council/Roberts J Report
So, it turns out that needs are as an elusive a concept as
fairness. It all depends. 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 that charge to a final hearing. Sometimes it appears that the imperative to
the judge got lost
in the (admittedly, now PD27A-reduced) paperwork. What often gets overlooked?
- 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?
- 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 only asked the high street rather than an independent broker. There are plenty of 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.
- Proper outgoings schedules. Whether in a Form E or otherwise, an outgoings schedule should be prepared with '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 have seen the ‘lazy five-line’ outgoings schedule (rent, food, petrol, Sky and credit cards), which do a woeful service to the claimant who has many more genuine needs to tell the court about. The ‘greedy lottery wishlist’ 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.