Elusive or Illusive? Fairness, the Family, and Family Law

Presentation to the International Academy of Matrimonial Lawyers’ 2015 annual conference.  (Full paper forthcoming):

The Commission on European Family Law grounds its 2013 Principles Regarding Property Relations[1] most fundamentally in equality,[2] expressed in terms of ‘equal rights and duties’.[3]  In terms of the underlying normative basis of the principles, Boele-Woelki, the Chair of the CEFL’s Organising Committee reasons:

In addition to equality between the spouses, the principles of sharing and fairness, solidarity, flexibility, legal certainty, protection of the weaker spouse, and the promotion of party autonomy are likewise of fundamental importance in this area of the law.[4]

Whilst recognising that the principles relate to matrimonial property, rather than also maintenance, pension sharing, and so forth, it is nevertheless noteworthy that Boele-Woelki positions ‘fairness’ as no more foundational than the other principles and sitting alongside concerns such as legal certainty.  But is this right?  Perhaps more critically as lawyers, (why) does it matter whether this posited hierarchy is correct or not?  Should we concern ourselves whether ‘equality’ or ‘fairness’ is the singular fundamental principle?

Answers to such questions turn on a better understanding of the concept of ‘fairness’ itself.  Yet, are any answers readily to be found?  The CEFL notes the need for ‘fairness’, amongst other aims, in relation to both of its proposed default regimes, participation in acquisitions and community of acquisitions.[5]  No definition of ‘fairness’ is provided.  In 1989, the Council of Europe placed economic independence at the core of the financial consequences of relationship breakdown.  The first way in which this was to be achieved was by using matrimonial property regimes to ‘grant[.] to a former spouse the right to obtain a fair share in the property of the other’.[6]  This itself is question-begging as ‘fairness’ is here proposed as a means to upholding respect for autonomy.  Is it ‘fair’ to impose autonomy on weaker spouse, particularly at the cost of another, who is also more commonly in straightened rather than prosperous circumstances?

There is a sense in which both the CEFL and the Council of Europe treat the concept of ‘fairness’ as self-explanatory.  In struggling to either refute or substantiate such proposals for the place and purpose of ‘fairness’, however, we may well ask if it has any conceptual core.  What does the reference to ‘fairness’ achieve or seek to achieve in this context?  Doubts over its usefulness might be heightened by noting that a number of IAML fellows’ responses to the circulated conference questionnaire indicated that their understanding of ‘fairness’ in practice differed from the law as expressed in their jurisdictions.[7]


Argument and Outline

In what follows, I examine from a comparative perspective the strategies adopted in various jurisdictions to embody ‘fairness’.

I begin by discussing strategies systems make about how to incorporate ‘fairness’ – whether to crystallise in legislation or judicial pronouncement; and what evidence, if ‘fairness’ is not explicitly incorporated, we may draw to suggest ‘fairness’ may nevertheless have been incorporated.  I discuss how ‘fairness’ relates to default matrimonial property regimes and how that compares to its place in the common law (non-)regime.

I disagree with the recent trend of drawing on outcomes alone to argue that the “pillarised”[8] civil law approach is not so dissimilar from the “holistic”[9], discretionary, and fact-based common law approach.  Central to this argument is the suggestion that ‘fairness’ is intimately connected to understanding ‘family law’ in an attitudinal sense, rather than in the conventional sense of the substantive legal domain covered.  I argue that a ‘family law’ attitude means treating the relationship under consideration as special.  Specialness necessitates that the relationship itself or aspects thereof ground a response that would be unavailable in the general law.  The uniqueness of the response may relate to the process of reasoning or the outcome reached, whether in terms of the outcome having a unique normative basis or being a substantive outcome otherwise unavailable.  This attitudinal understanding of ‘family law’ has consequences for which relationships should be viewed through the lens of ‘fairness’.

After discussing four facets of ‘fairness’ – rhetoric, process, outcomes, and institutional ‘fairness’ – I proceed to examine how we might evaluate the ‘fairness’ of individual systems.  This entails brief consideration of three values which inform ‘fairness’ – equality, autonomy, and vulnerability.  I conclude that responding to vulnerability via provision for ‘needs’ represents a baseline for the content of ‘fairness’, though I raise doubts about the implication that all jurisdictions that theoretically allow provision for ‘needs’, no matter how limited, should be seen as adopting a ‘fair’ approach.

I conclude by highlighting that the search for ‘fairness’ is fundamentally concerned with how we conceptualise disputes, such that there may be a ‘right’ cluster of values to guide decision-making, but no ‘right’ answer, no single better weighting of those values in practice.  Jurisdictional context is critical, and entails fit with underlying social, cultural, political, and economic norms.

[1] Katharina Boele-Woelki et al, Principles of European Family Law Regarding Property Relations between Spouses (Cambridge, UK: Intersentia, 2013).

[2] Katharina Boele-Woelki, ‘General Rights and Duties in the CEFL Principles on Property Relations between Spouses’ in Katharina Boele-Woelki, Nina Dethloff, and Werner Gephart, eds, Family Law and Culture in Europe: Developments, Challenges and Opportunities (Cambridge, UK: Intersentia, 2014) 3-12, 6.

[3] Boele-Woelki et al (n 1) Principle 4.2.

[4] ibid 6.

[5] ibid 147 (Principle 4.17) and 220 (Principle 4.34).

[6] Council of Europe, Recommendation No R (89) 1 (18 January 1989), Principle 1.

[7] Personal communications from IAML fellows in response to the ‘Fair is foul’ survey, circulated July 2015.

[8] Dutta, cited in Jens M Scherpe, ‘Towards a Matrimonial Property Regime for England and Wales’ in Rebecca Probert and Chris Barton, eds, Fifty Years in Family Law: Essays for Stephen Cretney (Cambridge, UK: Intersentia, 2012) 133-146, 138.  In addition to matrimonial property, the other critical ‘pillars’ are maintenance and pension-sharing.  Scherpe also mentions the allocation of the use of the matrimonial home.

[9] Scherpe, ibid 138.


A copy of the powerpoint presentation is available here.

Arbitration in Financial Dispute Resolution: The Final Step to Reconstructing the Default(s) and Exception(s)?

In this article, I argue for caution in embracing family arbitration as a new form of private ordering for resolving parties’ financial disputes. I explain that family arbitration may be more successful than other forms of private ordering and final court hearings in enabling certain types of parties to resolve certain types of disputes. Given that lawyer-led negotiations remain the most common form of out-of-court resolution, however, family arbitration’s impact may not be numerically significant. But family arbitration may be much more important in normative terms. Together with the transformation in approach to nuptial agreements, we may soon reach the position where it is no longer accurate to say that we are bargaining in the shadow of the default regime – the factual default of private ordering may become the autonomy-based normative default. I question whether this is a desirable step for family law, at least before we have resolved the underlying policy debate.

This paper is published in (2013) 35: 1 Journal of Social Welfare and Family Law 115-138, and available here.