February 13, 2018

Trial of financial remedy courts welcomed

A pilot of financial remedy courts will simplify the divorce process and provide greater consistency, writes Harriet Errington

London has long been known as the divorce capital of the world. This may be due its international population, the high calibre of its judges or, perhaps most likely, its reputation for generosity to the financially weaker spouse. Now changes are afoot to bring the rest of England and Wales in line with London, so far as procedure is concerned, if not results.

Sir James Munby, president of the Family Division in England and Wales, recently announced the trial of a new court system starting later this month or in March. This is designed to address the long-held concern of family law experts regarding inconsistencies between judgments in different regions of England and Wales, most often evidenced by the differences between outcomes in London and those elsewhere.

The law in relation to financial remedy on divorce is, by necessity, highly discretionary, on the basis that no two cases are the same and it must be possible for judges to exercise their discretion when dividing the assets between a couple so as to achieve fairness. The downside of this, of course, is that it can be very difficult to predict the outcome of a case.

Decisions can vary dramatically from one court to another and nowhere is this more pronounced than in London. This is said to promote ‘forum shopping’ – divorcing parties shopping around and choosing to issue proceedings in one court over another on the basis that they hope to achieve a more favourable result.

The scheme set to be piloted seeks to remedy this by establishing regional hubs, each presided over by a judge who is highly experienced in financial remedy work. The intention is to ensure that each hub has the appropriate level of expertise. The introduction of a streamlined system of courts with experienced senior judges in charge of each hub is hoped to provide greater predictability and consistency of outcomes in financial remedy cases. The scheme will initially be piloted in London, the West Midlands and South-East Wales, with further pilots to follow after Easter in different regions.

Additionally, the proposed scheme will also separate the divorce process from the complex and often acrimonious financial remedy proceedings. This is a move that is long overdue as the divorce process itself is largely administrative, save in very rare cases where the divorce is contested. Thus in theory very little is usually required from judges other than to rubber-stamp the legal separation of a couple.

There has long been a call within family law circles for specialist knowledge to be a prerequisite for judges dealing with financial remedy cases, as is the case in London where divorcing couples have access to specialist judges via the Central Family Court. This new scheme looks to extend such access to those outside the M25 as well as simplifying the divorce process. This should therefore be a development welcomed by lawyers and clients alike.