Searching for clarity in the family courts
The differing opinions of senior judges on matters such as the privacy of proceedings mean family practitioners can struggle to accurately advise clients, explains Alex Carruthers
Once again, family law cases hit the headlines in national newspapers in 2015. As well as the steady flow of celebrity and ‘big money’ divorces, there were a few cases which came to prominence because of new principles being laid down by family law judges.
These included the cases of Gohil v Gohil  UKSC 61 and Sharland v Sharland  UKSC 60, which enshrined the principle that ‘fraud defeats all’ – that is, if one party to a divorce deliberately misleads the other about their finances, then any subsequent order that is made can be set aside unless it can be proved that the other party would have agreed to the order even if they knew the true state of the fraudulent party’s finances.
Among the other notable cases, there were two strands which emerged:
Both of these strands of cases demonstrate an underlying theme (or, perhaps, problem) within English family law. A great deal of emphasis is placed on the discretion of judges to make decisions which are ‘fair’ to the parties who come before them. However, given that fairness is notoriously subjective, this inevitably leads to a system where it is difficult to predict the outcome of a case and, as in the two strands of cases above, there can be areas of law where two senior judges have apparently different views about important issues.
This makes it extremely difficult not only for practitioners to advise their clients, but also for junior judges to make decisions when they are obliged to follow the decisions of senior judges.
Privacy versus openness
The starkest example is the question of whether the public or the press should be allowed to view financial remedy proceedings. Two senior judges, Mr Justice Holman and Mr Justice Mostyn, hold differing views.
Holman J has made it clear on a number of occasions that he considers it in the interests of justice for there to be as much openness as possible in the court. He holds almost all of his hearings in open court and considers this the norm. On the other hand, Mostyn J recently delivered a judgment in the case of DL v SL  EWHC 2621 (Fam) in which he made clear his differences with Holman J and said that ‘the parties would, in [his] judgment, be entitled to anonymity and preservation of confidentiality of their financial affairs’. He went on to state: ‘It is my opinion that the present divergence of approach in the Family Division is very unhelpful and makes the task of advising litigants very difficult.’ He urged that the question be addressed by the Court of Appeal.
Most would agree with the sentiment expressed by the judge that, certainly in such important areas as this, it is paramount the situation be clarified. In my experience, most family law practitioners would agree with Mostyn J’s reasoning for why proceedings should be in private but, even if Holman J is right, it is a matter which has to be addressed sooner rather than later. It is simply unfair for a litigant to embark on a process of litigation not knowing whether it will result in their finances being widely publicly disseminated or not.
Another area of importance which is causing confusion among practitioners is the maintenance payable to a spouse on divorce.
England and Wales has traditionally been a very generous jurisdiction to the economically weaker party because, among other things, it is prepared to make ‘joint lives’ orders (in other words, orders which continue for the life of a recipient) even in relatively short marriages. This differs from most countries around the world (for example, in Scotland the maximum length of such payments is three years).
In the last few years, however, there has been a subtle shift in this attitude and, furthermore, regarding the level of maintenance that the economically weaker party should enjoy post separation.
Again, Mostyn J is leading the charge. In the case of SS v NS  EWHC 4183 (Fam), he stated that the court should consider a termination of spousal maintenance as soon as it was just and reasonable, and that a fixed term for such maintenance (for example, five years) should be considered unless the economically weaker party would be unable to adjust without undue hardship. He also stated that the quantum of spousal maintenance should be looked at carefully and weighed against the desired object of eventual independence. He referred to the economically weaker parties’ ‘hard future needs’.
On the other hand, Mr Justice Moylan delivered a judgment in AR v AR  EWHC 2717 (Fam) in which he said that the level of maintenance should not be restricted simply to future economic needs, but to what would be ‘fair’ for that party to receive. He rejected the notion that rigid formulas applied and instead quoted Lord Justice Ward’s statement in Robson v Robson  1 FLR 751 that assessing the level of maintenance and, indeed, capital was ‘an art not a science’. Moylan J made it clear that the wife in AR was entitled to have sufficient resources to enable her to spend on additional discretionary items, which would vary from year to year and which were not reflected in her budget.
Need for clarity
Again, this case illustrates the need for clarification. Is the provision of maintenance dictated by the parties’ needs or by a more general interpretation of all the circumstances of the case?
There is much criticism levelled at family law practitioners (sometimes justifiably) for the costs involved in preparing cases for court. However, one major reason for this is the level of ambiguity of the case law being handed down. Not only does it make giving advice difficult, but it inevitably leads to a system whereby clients who wish to maximise their possible benefit from the proceedings position themselves at one end of the spectrum of likely results, while the other party gravitates towards the other end of the spectrum. The spectrum of possible outcomes appears to become wider and wider and it is then more economically sensible for the parties to ‘roll the dice’ to see whether they get a judge who prefers Moylan J to Mostyn J, or vice versa.
Unfortunately, there is little likelihood of this system changing in the future. Although practitioners hope that these areas of law will be clarified by a higher court, it is inevitable that different areas will crop up and replace them. Parliament is unlikely to come to the rescue and expend valuable political capital on areas such as this, which are notoriously controversial and have no potential benefit for the political parties. The present major statute was passed in 1973 and there is no realistic prospect of detailed instructions from parliament being laid down any time soon.
Of course, the contrary view is that the best way for a system of law to adapt is for judges to develop and interpret the law over time. However, the price that comes with this system of law is a level of confusion and cost which seems, at times, incomprehensible to the lay person.
Read the full article in the Solicitors Journal here and as part of the December End of Year Review.