The Court of Appeal’s decision in Hart v Hart may not have laid down any new law, but I think it does cover and raise matters of importance, as I mentioned here in my previouis two posts. As noted in the first, I had originally intended to cover those matters in two posts. However, as I was reading the report of the decision a further thought struck me, and I decided I would share it here.
The thought relates to the process which His Honour Judge Wildblood QC used to come to his decision at first instance. I should make clear at the outset that this is not intended in any way to be a criticism of Judge Wildblood (who, as we will see, is a highly respected judge), but rather of the uncertainties surrounding the law on financial remedies.
As Lord Justice Moylan explained in the Court of Appeal, Judge Wildblood endeavoured to come up with a calculation of the award to the wife by reference to a formula. To this end, he came up with no fewer than four different formulae (to understand them you may need to refer to my first post), as follows:
- A calculation of the wife’s financial needs.
- An analysis of what pre-marital assets had become “mingled” with matrimonial assets.
- An analysis of the non-matrimonial property.
- The addition of half the assets in the parties’ joint names, the assets in the wife’s name and the wife’s 25 per cent share of the funds to a family trust.
Needless to say, each formula came up with a different figure. In the event Judge Wildblood only used the first of the formulae (which incidentally came up with the lowest figure), finding that it was “the most scientific and also the most principled”. What struck me, however, was that he had even felt the need to look at four different approaches. What kind of system do we have that is so uncertain as to warrant such an exercise?
Now, I admit at this point that Moylan LJ had this to say about the formulaic approach (at paragraph 84):
“In my view, the court is not required to adopt a formulaic approach either when determining whether the parties’ wealth comprises both matrimonial and non-matrimonial property or when the court is deciding what award to make. This is not necessary in order to achieve “an acceptable degree of consistency” … or to achieve a fair outcome.”
Instead of using a formulaic approach all that was required was an assessment by the judge as to what was a fair outcome. He said (at paragraphs 96 and 97):
“The court will have to decide … what award of such lesser percentage than 50% makes fair allowance for the parties’ wealth in part comprising or reflecting the product of non-marital endeavour. In arriving at this determination, the court does not have to apply any particular mathematical or other specific methodology. The court has a discretion as to how to arrive at a fair division and can simply apply a broad assessment of the division which would affect “overall fairness” … I recognise, of course, the need for clear guidance and principles when the court is given a discretion as wide as that contained in section 25 of the 1973 Act. Such clarity not only assists judges when determining financial claims but also enables those seeking to resolve the consequences of their separation and divorce, as it has been described, “to bargain in the shadow of the law” … However, this should not lead to the imposition of constraints which are not needed to achieve, and which deprive the court of the flexibility required to achieve, a fair outcome.”
The trouble with this is surely that such uncertainty will only encourage judges and lawyers to come up with a formula (or four) to help them arrive at a decision. It’s all very well saying a formula isn’t required, but wouldn’t it be better to have (preferably one) formula for everyone to follow? Now, I know how difficult it would be to come up with such a formula, but nevertheless I’m not sure that the difficulties are unsurmountable.
As Moylan LJ said, Judge Wildblood is a highly experienced judge when it comes to financial remedies claims. He is also, as I know, highly respected. To see him utilising no fewer than four different approaches suggests that he was casting around for guidance, in a system that provides little. It’s all very well to say: “come up with a result that’s fair”, but without a little more guidance, that’s easier said than done.
Photo by Images Money via Flickr under a Creative Commons licence
