At long last the Family Justice Council has published its Guidance on ‘Financial Needs’ on Divorce, described by President of the Family Division, Sir James Munby, in his foreword as ‘…intended as a useful tool for the judiciary in relation to the making of orders to meet financial needs following divorce and the dissolution of civil partnerships’, but surely also as useful guidance for practitioners when advising clients on this difficult discretionary area of family law. But will difference will it make?
The guidance focuses on those cases where the available assets do not exceed the parties’ needs, and provides a summary of the law as explained and developed in leading cases. It also includes a number of helpful case studies of common scenarios.
The origins of the guidance are in the Law Commission’s 2014 report, Matrimonial Property, Needs and Agreements, which highlighted concerns regarding evidence of significant regional differences in the levels of needs-based support likely to be awarded in different courts, and a lack of transparency in this area of the law. The Law Commission recommended that the Family Justice Council prepare guidance for the courts, with the stated aims of achieving both greater clarity and consistency of approach.
What is the purpose of the guidance?
At 64 pages in length, this is not a light read. It raises the question of the weight it will be given in practice: it has no statutory basis, it is merely guidance. The President says that on distribution of the guide to the judiciary, ‘The consensus view was that its distribution nationally will be of significant assistance to judges without in any way diminishing the fundamental importance of judicial discretion.’
The authors of the guidance acknowledge that, as the Law Commission observed, in an area where there are no rules or strict entitlements, there is a limit to what such guidance can achieve. The guidance cannot, and is not intended to, change the law. Its stated purpose is to ‘disseminate information about the ways in which the courts’ discretion is currently exercised, and to encourage the consistent use of that discretion in a particular way and (if possible) with a particular objective’. The intention is that it will be revised and updated at regular intervals.
It is also suggested that the guidance should be read in conjunction with Sorting out Finances on Divorce, the guide produced previously for the assistance of litigants in person.
Are we any further forward? Not hugely. I suspect that regional variations will persist, not least in part because there are regional economic differences that inevitably impact on financial provision cases. The guidance will hopefully promote some greater degree of consistency, and may prove a useful reference point, but it cannot and does not change the law. It remains that while the Matrimonial Causes Act 1973 has been amended numerous times since coming into force, it is an Act that was conceived in a very different time. The concept of needs has, more recently, largely been shaped by case law, and that case law has (for at least the last decade or so) been dominated by big (if not huge) money cases. Most cases do not fall into that category, making the existing law an awkward fit for the everyday case. So, read, digest and contemplate the guidance. The worked examples are particularly interesting reading. But don’t expect a dramatic move to consistency of approach any time soon.
Geraldine Morris is a solicitor and Head of LexisPSL Family.