The court's powers were expanded in 1859 to enable the court to vary ante or post-nuptial settlements. Section 5 of the Matrimonial Causes Act of that year provided that the court could do so as to it 'shall seem fit'. Again this was a laconic prescription which left the interpretation squarely in the hands of the judges.
By s 1 of the Matrimonial Causes Act 1907 the court was given power to award unsecured maintenance. The scope of the discretion, and the matters to which the court was mandated to have regard, were not altered. The menu of powers and the way they were to be exercised were consolidated but not materially altered in ss 190–192 Supreme Court of Judicature (Consolidation) Act 1925. And again, in ss 19, 24–25 Matrimonial Causes Act 1950. By s 5 of the Matrimonial Causes Act 1963 the court was given power to award a lump sum. The Matrimonial Causes Act 1965 consolidated all the powers and the prescription as to adjudication in ss 16 and 17; the only direction as to how the powers were to be exercised was 'as [the court] thinks fit'.
Further powers were given to the Court by the Matrimonial Proceedings and Property Act 1970. These were the power to award: (a) a transfer of property order and (b) a settlement of property order in favour of either party irrespective of his or her conduct. Further, the inquisitorial obligations of the court were set out far more expansively, in the well-known form and this included the minimal loss tail piece with which you are all familiar. That was regarded by the Law Commission as doing no more than to express in the statute the principle stated by Lord Merrivale P in
N v N
(1928) 44 TLR 324 viz:
'I conceive that I must take into consideration the position in which they were and the position in which she was entitled to expect herself to be and would have been, if her husband had properly discharged his marital obligation.'
Although the scope of matters the court was mandated to take into account was made more extensive it is hard to see whether they actually encompassed any matters beyond the more laconic 1857 phrase 'as the court thinks reasonable having regard to her fortune (if any), his ability and the conduct of the parties'.
The 1970 Act was consolidated without alteration into the Matrimonial Causes Act 1973, ss 21–25. By s 7 of the Matrimonial Homes and Property Act 1981 a further power was given the court to order a sale of property (s 24A). By the Administration of Justice Act 1982, s 16, the power to award interest on deferred lump sums was given. By the Matrimonial Proceedings and Property Act 1984 the tailpiece was removed and the court was required to give first consideration to the welfare of minor children. A statutory steer was included by s 25A to a clean break. By the Welfare Reform and Pensions Act 1999 the court was given power to make a pension sharing order. Now the menu of powers was complete.
So we can see the chronology as to the statutory mandate concerning the exercise of the discretion:
- laconic – 1857
- expansive, with minimal loss objective – 1970
- expansive; no minimal loss objective; first interest welfare of children; steer to clean break – 1984
What is clear, so far as ancillary relief is concerned, is that following the founding statute in 1857 every following statute has amounted to piecemeal tinkering, to a greater or lesser extent. I agree that there has never been a great analysis by Parliament of the underlying ideology and of the extent of the duties of the court and the parties. Rather, Parliament was fixated with the grounds of divorce; the question of fault; and the concept of the matrimonial offence. This was the gripping issue and was not ultimately resolved until the passage of the Divorce Reform Act 1969. So far as ancillary relief was concerned, as I have shown, Parliament has always intended that the relevant standards should be formulated by the judges.
It is not necessary for me to set out at any length the way in which the judges have exercised the discretion over the decades. Suffice to say that before 2000 the benchmark was the wife’s reasonable requirements. That was swept away by the decision of the House of Lords in
White v White
 1 AC 596,  2 FLR 981
which introduced the concept of the yardstick of equality; the proscription of discrimination; and the over-arching criterion of fairness. Those concepts were refined by the House of Lords in Miller v Miller; McFarlane v McFarlane
 UKHL 24,  1 FLR 1186
where the three co-existing principles of needs, compensation and sharing were expounded. In my opinion the present system works very well, and very predictably, so far as substantive law is concerned.
I do not dispute the merit of the Law Commission's proposal to make qualifying nuptial agreements presumptively binding.
However, I do dispute the need to introduce Scottish-style mechanistic prescriptions as envisaged by Baroness Deech's Divorce (Financial Provision) Bill. It borrows heavily from the Scottish system. In 1997 Lord Irvine sent his Ancillary Relief Advisory Group up to
Edinburgh to learn about it and to report. It duly reported – very negatively. It was convinced (and the Scottish practitioners in effect conceded) that their rigid system replaced one set of problems with others, probably worse.
Many technical criticisms can be made of the Bill as presently formulated but I will not tarry over those. The central themes are that:
One can see many furious disputes arising. I foresee valuation disputes concerning the assets at date of separation and the question of passive or active growth on them. I foresee disputes about the three year guillotine for maintenance. What of a wife aged 60 with no capacity to work is left after a long marriage and where the parties have negligible matrimonial property but the husband is likely to have a large income for many years? Her future support cannot be met out of capital and she needs periodical payments. The Bill cuts her off at age 63. What is she supposed to do then? I foresee disputes about the different ways in which the discretion is to be exercised in relation to a lump sum and all other capital orders (where the character of a capital asset, land or money, is surely a fortuity). I foresee furious disputes around the inability to effect a clean break because a lump sum can only be awarded out of matrimonial property. Beyond all this I recall Joseph Jackson QC's timeless apothegm: 'Every piece of family legislation is 10 years' work for the Bar!'
- Nuptial agreements should be presumptively binding (I have no problem with that).
- Matrimonial property should be calculated at the date of separation and presumptively divided equally.
- An order for periodical payments cannot extend for more than 3 years.
- An order for periodical payments or for a lump sum (but not any other form of capital provision) can only be made to redress economic disadvantages. And a lump sum can only be awarded out of matrimonial property.
In truth the tests we presently apply and the tests that the reformers would have us apply are no more than heuristics. Whatever the architecture of choice the decision maker will know at the end of the case what is the just result. If the heuristics in play do not conform to that result the decision maker will simply rearrange the architecture of choice. The great leap forward from needs to sharing has already happened and there is no way of extracting that milk from the coffee.
In the second reading debate on 27 June 2014 my very good friend Baroness Shackleton of
Belgravia stated in a magnificently self-sacrificing speech:
'Uncertainty of outcome creates an industry for lawyers to litigate. It makes it difficult or impossible to have successful mediation, and the financial costs —not to mention the unquantifiable human cost mentioned by many noble Lords, aggravated often by delay because the courts are too full — are vast and unnecessary. The Bill seeks to limit the discretion of a court and provide direction from Parliament for matrimonial finance.'
I do not agree that the present system is replete with uncertainly. Were we to scrutinise a case study today I would warrant that the overwhelming majority would be within a few percentage points of the mean. Put another way the standard deviation would be low. I am sure there would be some outliers but the standard deviation graph would be shaped more like a bell than an upturned saucer; of that I am convinced.
But in any event the system must not sacrifice fairness on the altar of certainty. And as Sir Paul has pointed out standards of fairness change, sometimes quickly, and often the only way they can be reflected is by the judicial arm of government, given the other demands made on the legislature.
You have seen that I have disagreed with Sir Paul, with Professor Bailey-Harris, and with Baronesses Deech and Shackleton. I am reminded of the story of the mother watching her son's passing out parade at
Sandhurst. 'Look' she exclaimed 'they are all out of step with our John!' But I am not completely alone. My almost final word is to quote from Lord Scott of Foscote in the debate:
'It has to be recognised that there is always a tension in deciding what the statutory framework should be for the management of the affairs of the disputing couple post marriage. There is a tension between certainty on the one hand and fairness on the other. Certainty can be achieved by careful drafting of legislation, but fairness depends on the circumstances of the individual case. However, individual cases and people are different, and people have different problems. The greater the certainty, the more likely that the rigidity of whatever the certain system is that has been decided upon will produce, in some cases, unfairness for one or other of the spouses. That is the justification for giving the judges the huge amount of discretion they have under the present statutory framework. Maybe that leads to more dispute and litigation than is desirable; maybe the judges should not have so much discretion. To introduce more certainty or cut down on the discretion would be at the expense of fairness. That is a very difficult balance to strike. The advantages of certainty will not solve satisfactorily all the problems, because the same answer does not necessarily produce fairness for everybody.'
In the immortal words of many an appellate wingman I say 'I agree and have nothing (more) to add'. So this is why I conclude with my title.
¡Viva El Loro!
Ray Hill: "Multiple sudden infant deaths – coincidence or beyond coincidence?", Pediatric and Perinatal Epidemiology, vol. 18, pp. 320–326 (2004).