Is it time for a new word for ‘needs’?

family law

We’ve all heard the expression that there is “one law for the rich”. Save for what I say below I’m not going to enter the argument as to whether this is true in relation to family law in this country, but surely the mere fact that there may be a perception that it is true can be important.

In my post here yesterday I mentioned the recent case FF v KF. The case concerned an appeal by a husband against a lump sum award to the wife, on the basis that the judge had gone beyond an assessment of the wife’s needs. Those needs had been calculated as £4.25 million. The appeal was heard by Mr Justice Mostyn in the High Court. In the course of his judgment he referred to the McCartney case in which the wife’s needs had been assessed at £25 million, another case in which the wife was awarded £62 million to meet her needs and the AAZ v BBZ case that was the subject of my last post, in which the wife’s needs were assessed at £224 million. He said the following:

“Plainly “needs” does not mean needs. It is a term of art. Obviously, no-one actually needs £25m, or £62m, or £224m for accommodation and sustenance.”

What is happening here is that the courts are juggling with the wording of the present law, to deal with the fact that in a wealthy family it would obviously not be fair for one party to only be left with an amount sufficient to cover the basic needs of the ‘average’ person. An ‘average’ person may only need a few hundred thousand pounds to buy themselves a home and have enough to live on. Clearly if, as in the AAZ v BBZ case, there are assets of over a billion pounds then it would not be reasonable or fair to award one party just a few hundred thousand pounds to cover their needs. Accordingly, the courts use the word “needs” (one of the matters that the court is required to consider by section 25 of the Matrimonial Causes Act) in a special way. Rather than giving the word its generally accepted meaning it is given a special meaning in this context (“a term of art”), to deal with the needs issue in wealthy families.

Does all of this matter?

Well, it is all very well calling it a ‘term of art’, but a non-lawyer reading about the case will still understand the word “needs” by its normal meaning – i.e., what a person needs to accommodate and sustain themselves, irrespective of their means. I doubt that many media outlets will explain what “needs” really means in this context, despite the Family Justice Council providing guidance on the subject. A member of the public seeing a judge say that someone “needs” £224m is likely to think that the judge is out of touch, bringing the law into disrepute. You can imagine the conversations in pubs about judges in their ivory towers separated from reality, and one law for the rich. It adds to the narrative of judges being from the elite, old school tie, and so on.

Which makes me wonder whether it is time we used a new word or phrase to describe “needs”.

The problem with this is that it’s not easy to come up with a new word or phrase.

I thought of the word ’expectations’, but that seems too vague, and not really appropriate anyway. It connotes entitlement which in a sense is correct, but is somewhat distasteful. And ‘expectations’ doesn’t really explain the concept that the word is intended to cover.

Then there is the word ‘requirements’. Of course ‘reasonable requirements’ used to be a term used to describe needs, but that was criticised for the very reason that it could limit the amount awarded to that spouse in higher money cases. The word ‘requirements’ on its own is clearly better than ‘expectations’, but it is still not really much better than ‘needs’.

In the end the best that I can come up with (after admittedly only a short consideration) is the term “lifestyle requirement”. This combines the idea of ‘needs’ (indeed, that word could be used instead of ‘requirement’, but that would be too close to what we already have), and also adds the modifier of the lifestyle that the family previously enjoyed, so that the requirement is appropriate to that lifestyle.

OK, I’m sure someone can come up with something better, but the point of this post is not so much to provide an answer, but rather to ask the question whether we should come up with a new word or phrase. It seems to me that perhaps we should.

If you wish to read the full judgment in FF v KF, you can find it here.

Photo by mrpolyonymous via Flickr under a Creative Commons licence.

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.

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15 comments

D - May 16, 2017 at 4:18pm

“weighted needs” ?

Andrew - May 16, 2017 at 5:55pm

“greedy aspirations”, perhaps?

Andy - May 16, 2017 at 7:53pm

GOLDIGGER’s Needs…

Paul - May 17, 2017 at 1:01am

LOL
‘The average person only needs a few hundred pounds to buy a home’
WTF… unbeleivable. That is a monumental statement.
Everything you need to know about what is wrong with our legal system is summed up entirely by that statement their.
Our judges don’t live on the same planet. In the same ecco system and the value of money is a mystery to them. WOW just WOW.

John Bolch - May 17, 2017 at 3:29pm

I actually said “a few hundred thousand pounds”. According to the ONS, the average house price in England as at last March was £233,000, but that goes up to £312,000 for the south east, and £472,000 for London.

So why is my statement unbelievable?

Stitchedup - May 17, 2017 at 9:14am

Distorted sense of entitlement payment perhaps?
Politically correct asset transfer?
Soft landing Payment?
Put the man in the gutter assurance?

Stitchedup - May 17, 2017 at 9:20am

How about “male homelessness generation scheme”?
Or “rat infested bedsit male occupier scheme”.

John Bolch - May 17, 2017 at 4:07pm

‘weighted needs’ could work.
As for the other suggestions… you people really crease me up.

Cameron Paterson - May 17, 2017 at 5:04pm

Now then John … we wouldn’t want to have to moderate you 😉

John Bolch - May 17, 2017 at 5:12pm

Good job you put a smiley face after that comment!

Stitchedup - May 17, 2017 at 5:21pm

How about having a new word for non molestation orders. I raised this with the judge in my case, the word molestation and it having sexual connotations and the judge agreed with me that the word was often inappropriate. Why don’t we describe orders for what they are? in my case nothing more than the silent treatment, and if breached, the description of the offence should reflect the nature of the breach, e.g. Speaking to an ex when ordered not to, not breach of a non “molestation” or as some refer to it “domestic violence”?

Stitchedup - May 17, 2017 at 5:28pm

And whilst we’re at it, lets do away with convicting people for things which, in normal circumstances is not criminal behaviour. By all means convict somebody for a breach that involves assault, but actions which are not normally criminal should be kept within the civil courts and result in a fine at worst. Also, orders that involve restrictions to normal human behaviour such as speaking should only be issued in extreme circumstances, after all, the courts are meant to encourage separating couples to communicate, mediate and attempt to sort their issues out as amicably as possible.

John Bolch - May 17, 2017 at 5:38pm

And whilst we’re at it, could we please have comments on topic?

Stitchedup - May 17, 2017 at 6:22pm

You’ve already had em 🙂

andrew wolstencroft - May 17, 2017 at 8:38pm

I posted a viewpoint only a few weeks ago – the case of Graham and Maria Mills – on the outrageous divorce rulings passed down by UK judges which constitute nothing less than abuse and exploitation of men. I didn’t have to wait long for the next example; there have in fact been two in the last week which isn’t surprising, as cases like these seem to make the headlines almost weekly.

I made the point that the legislative guidelines, precedents set over the last twenty years or so and the enormous amount of discretion given to judges have resulted in a framework which effectively facilitates and legitimises extortion. Here’s more evidence for the prosecution. The actual case summary provides fascinating insights into the mind-sets and values of the judges that make these decisions and how the guidelines are interpreted accordingly.

£4.25 million for a marriage that lasted less than two years. Think of that. No children, no career sacrificed to raise a family and support a husband and yet a payment of £4.25 million. Forget the amount the husband is worth or what he can pay – how can it be right that someone can be entitled to receive £4.25m after less than two years of marriage?

It seems like there are two guiding principles for deciding the amount of a settlement; those of sharing (the wealth generated during the marriage) and needs.

The sharing principle may be a reasonable basis in the case of a 25 year marriage where one partner has sacrificed a career to raise children, freeing up the other partner to pursue their career and create a lot of wealth and it’s clear that all this wealth was generated during the term of the marriage.
But for a very short marriage where there has been no such sacrifice and no such contribution to wealth creation? Well that doesn’t matter actually – the principle still applies and judges can apply it, at their ‘discretion’.

The other requirement is to consider ‘needs’ or more specifically ‘reasonable needs’. Here the judge has an “almost unbounded discretion”.

When these two figures are determined, the higher figure is the one selected. The appeal judge, in this case, makes it clear that it was a waste of time trying to determine the marital acquest as this was most obviously about needs right from the start. This is no doubt because a share in the marital acquest over two years was less than a third of the sum determined by the wife as her ‘reasonable’ needs. No doubt if it had been greater, then a share of the acquest would have been the relevant number – again it’s all at the judge’s ‘discretion’.

Then we get onto the determination of ‘reasonable needs’ and when you look at the breakdown this really beggars belief.

In the exercise of his ‘discretion’ the judge decided that she didn’t just need a place to live but a £2.3m flat in Mayfair – described as “ a legitimate choice of the judge to allow the wife to buy a reasonable apartment in a part of London in which she felt happy and comfortable”. In addition to this £300k to clear her debts, 60k for furnishings, 24k for a car and £17.5k for therapy – the experience of this two year marriage has left the woman psychologically damaged apparently. These are just a few highlights of the wife’s capital needs deemed to be ‘manifestly reasonable’.

The justification given is that the husband is a very rich man, with lots of liquid assets and they enjoyed a very high standard of living together.

So that’s it, marry a rich man for a couple of years and be set up for life at his expense – scandalous.

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