2 thoughts on “Financial Provision – Lecture series

  • 21st April 2017 at 1:37 pm
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    What do you think if it is to say that the so called big money judgments have not clarified but further muddied the waters in relation to financial and property orders on divorce?

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    • 8th May 2017 at 12:17 pm
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      Hi, That’s a tricky and interesting question. I think the answer depends on what we think ‘fairness’ was intended to achieve and what it’s capable of achieving. (1) ‘Fairness’ wasn’t new in White, but was used to trigger a shift in approach in White away from excessive focus on s25(2)(b). If that was its only aim, that would have been well-achieved. But the desire for certainty in practice (and a misunderstanding of what the reference to ‘equality’ in White meant) inevitably led to pressure to revisit White and ‘fairness’. (2) But the inevitable next step of seeking to make ‘fairness’ more certain creates an impossible task for the judiciary. At the critical moment at which the statement of principles is sufficiently certain to be helpful, it has become an ‘impermissible judicial gloss’; but, in the absence of such certainty, ‘fairness’ is much criticised and criticisable. A lot of the difficulty in subsequent cases relates to attempts to either (i) make certain but not too (unjustifiably) certain aspects of ‘fairness’ (eg. the ‘compensation’ case law) or (ii) avoid the consequences of applying the sufficiently-certain principles (eg. stellar contributor arguments) (3) What this reveals is that, if we’re unhappy with the judicial attempt to clarify s25, arguably we should blame s25 not the judiciary. (4) But if we’re about to blame s25, that really means that we’re attacking the fundamental premise of (at least this area of) family law – individualised justice, which requires discretion. (5) And yet it’s not clear that we’re ready to abandon that fundamental value, even if we continue to criticise its expression in practice!

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