These are the handouts for the overview lectures I provide on financial provision upon relationship breakdown. The focus here is on the breakdown of status relationships; the final issue, which compares status and non-status relationships was discussed as part of last year’s lectures:
- Issue 1 – (Preliminary matters and) the debate over the normative basis of ancillary relief [handout here];
- Issue 2 – Outline of governing legal principles and case law, including the extension of governing legal principles to marriage between same sex couples and civil partnership [handouts here and here];
- Issue 3 – Private ordering and procedural aspects [handout here];
- Issue 4 – Reform of the law governing ancillary relief [handout here];
- Issue 5 – Comparison between the legal regime governing the financial consequences of the breakdown of status relationships and the approach taken to non-status relationships [comparison chart here and handout here].
The High Court’s decision in S v S  EWHC 7 (Fam) (S) is the first to give judicial endorsement to the Institute of Family Law Arbitrators’ (IFLA) scheme for parties to use arbitration to resolve the financial consequences of marriage and civil partnership breakdown. The significance of the decision extends beyond the case itself. Sir James Munby P’s judgment is important in four respects: first, he guides courts as to the process to adopt when considering applications made in the context of arbitral awards; second, he makes critical suggestions for future procedural innovations and rule changes; third, he directs courts as to how to weigh the substantive content of arbitral awards against section 25 of the Matrimonial Causes Act 1973 when hearing applications for consent orders and attempts to resile from the arbitral award; fourth, he comments on autonomy as the underlying theoretical basis for this substantive approach to arbitral awards.
This paper is published in (2015) 37 Journal of Social Welfare and Family Law 99-101, and available here.
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.