Is it time for a new word for ‘needs’?
By:15 commentsMay 16, 2017
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.
May 16, 2017
Categories: Family Law