Doesn’t it strike anyone as strange that the judiciary should be provided with guidance on needs?

family law

Last Friday the Family Justice Council published its Guidance on “Financial Needs” on Divorce. As the President of the Family Division Sir James Munby stated in his foreword to the Guidance, it “is 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.” In particular, the Guidance is aimed at addressing the “unacceptable regional disparities” in the application of the law relating to financial needs on divorce by judges around the country.

But isn’t it a little odd that it is considered necessary to provide our judges with such guidance? Surely, our judges should already be experts at family law, and should not therefore require any additional guidance? After all, the Guidance essentially only goes over the existing law, which our judges must already know, mustn’t they?

Well, I’m absolutely certain that there will be very little in the Guidance that a good, experienced, family court judge does not already know. The problem, however, is that we operate a judicial system whereby many of the judges dispensing family justice are not family law experts. Many of them have never practised in family law in their lives. I suspect that this fact may come as something of a shock to the general public, who are surely entitled to expect their judges to know what they are doing. Of course, it is perfectly possible to be a good family law judge without having practised family law previously, but it means a pretty severe learning curve, as not only is there a good deal of law to learn, but the approach required in family cases is also quite different from other areas of law – a point I made here recently in this post.

There is also something else. The basis of our law on financial remedies following divorce is set out in statute (written law). Now, I know that any statute is open to interpretation, but surely a well thought-out law and a well-drafted statute will obviate the requirement for guidance upon such a basic and crucial issue as needs? Or, to put it another way, if there is a requirement for such guidance, shouldn’t it be for Parliament to amend and clarify the law, rather than for an advisory public body such as the Family Justice Council to provide the guidance?

What I am saying is that the law is in need of reform. Rather than patching up the existing hotchpotch of statute, rules, practice directions and case law with yet another piece of guidance, what we really need is a decent new law that is clear and that stands up by itself, without the requirement of additional guidance.

And then there is the issue of regional variations in interpretation of the law, as identified by the Law Commission in its Matrimonial Property, Needs and Agreements project back in 2014, to which the Guidance owes its origin. Again, if we had a clear system of law, operated solely by expert judges, then there simply wouldn’t be any regional discrepancies. Once more, I’m sure the public would be appalled if they found out that what they are likely to get from a court may be determined by whereabouts in the country that court is located.

Look, don’t get me wrong. I’m not saying that the Guidance is bad, or that it is a bad idea (it could be pretty useful for practitioners, as well as judges, particularly those new to family law work). I’m just saying that it is strange, and perhaps slightly disappointing, that we have a system in which such guidance is considered necessary.

The Guidance can be found here.

Photo by Mr T in DC

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

View more from this author

4 comments

spinner - July 6, 2016 at 9:13pm

“What I am saying is that the law is in need of reform.” – steady on that sounds a bit radical, I mean it’s only been fifty odd years I’m sure it’ll be fine for another fifty.

Tony Grubb - July 7, 2016 at 12:49am

Not in the least strange. I haven’t yet had the chance to read the guidance from on high nor to comment upon it as a consumer – but in principle it is LONG overdue in the eyes of anybody NOT in the industry of creating maximum confusion (and doubt) for their own collective personal gains; whereby they hence create a “need” for the services of people who are past masters at deceipt and deception, alleging “needs” which will never be expended, the fruits of that deception just being trousered by those with the lack of moral fibre to see what they are being “sold”.

The euphemism “judicial discretion” is an excuse within the matrimonial industry, (not a profession unlike other areas of the law) for the complete dishonesty which I was told about at the outset of my experience of same. If only matrimonial judges were recruited from a more highly-regarded division of the law which hadn’t involved the faded matrimonial ex-QCs who retire to become judges; because they themselves have had as their primary intent the pushing of the boundaries of confusion about the Matrimonial Causes Act which Parliament democratically ordained – but which Parliamentarians’ seedy matrimonial division friends have spent their expensive time undermining. Additionally, they inevitably have their allegiances to the firms who favoured them as Counsels of choice and thereby promoted their gilded lifestyle “earnings” by dishonesty.

I fear nonetheless, pending the reading of it having printed it out in its full longevity, that the vested interests of the matrimonial industry will prevail.

We are told at thje foot of his articles that “John Bolch often wonders how he ever became a family lawyer. He no longer practises, ……”
I can help him. He was able to become and remain a family lawyer because of his disconnect from the mainstream of public sentiment. Guidance to “completely dishonest” matrimonial judiciary is a step in the right direction. Adherence to what Parliament had democratically decided would be a hugely much better one. Just who do they think they are to presume to adjudicate otherwise, in the face (notionally) of our constitution’s “separation of powers”.

Tony G

spinner - July 7, 2016 at 9:16am

You need a facebook style “like” on your comments system as I fully agree with this.

Sam - July 9, 2016 at 2:22pm

“Well, I’m absolutely certain that there will be very little in the Guidance that a good, experienced, family court judge does not already know. The problem, however, is that we operate a judicial system whereby many of the judges dispensing family justice are not family law experts. Many of them have never practised in family law in their lives. I suspect that this fact may come as something of a shock to the general public, who are surely entitled to expect their judges to know what they are doing. Of course, it is perfectly possible to be a good family law judge without having practised family law previously, but it means a pretty severe learning curve, as not only is there a good deal of law to learn, but the approach required in family cases is also quite different from other areas of law – a point I made here recently in this post.”

This has NOT come as a surprise to me AT ALL. It seems to make absolutely no sense to have barristers specialize and yet judges do not. It can be seen obviously in judgements, those such as HHJ Wildblood QC are empathetic and know the law and yet others so clearly don’t and astounding decisions are made in private then not published.

Leave a comment