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February 27, 2013updated 09 May 2016 1:11pm

Top Family Lawyers Say Divorce Outcomes are Becoming More Uncertain

By Spear's

By allowing legally irrelevant evidence to be heard in court, judges are increasing the financial uncertainty surrounding divorce

JUDGES ARE ALLOWING emotive evidence in divorce cases that isn’t legally relevant, say top divorce lawyers, meaning marital dissolutions turn not just on what the law says but also on what a judge thinks is ‘fair’.

For the past month or so, the Spear’s Research Unit has been taking the pulse of London’s family law scene. For the next Index, due out early April, we have been talking to London’s top divorce lawyers, many of whom say that uncertainty surrounding the financial outcome of separations is increasing because of this emotive evidence.

Our common law system means that cases can alter and refine statute, and its resulting fluidity is rightly praised. Some family lawyers I spoke to, however, seemed exasperated at the uncertainty that this can create. In the emotionally-charged world of divorce law, where clients coming through the lawyer’s door for the first time are eager to know what the financial consequences of their separation are going to be, the constantly changing legal landscape makes it hard for their solicitors to give them clear-cut answers.

The problem is fairly deep rooted, says Diana Parker of Withers: ‘There isn’t a cultural awareness in this country of what the outcomes are when a couple split. I consider that to be a grave deficit in terms of our political and cultural landscape.

‘I’ve been doing this job for long enough that I’ve seen volcanic activity in terms of how case law reinvents statute law to give totally different entitlements, depending simply on the passage of time and a judge’s view of what might be fair.’
FAIRNESS, MANY LAWYERS say, is a concept that is extremely difficult to apply in the realm of divorce law. One even told me that he thinks courts and judges shouldn’t use it at all. A key reason for this is that the conduct of each party in a divorcing couple is, by law, not deemed relevant to the financial settlement of a case.

In theory, that might seem like an admirable attempt at clarity and objectivity in a complex setting, but the reality is a tension between what clients think is fair and hard legal reality. A distraught wife whose husband has run off with his secretary, for example, is going to find it difficult to hear that his dissolute behaviour will not be factored into courtroom proceedings at all.

But as Suzanne Kingston, also of Withers, points out, it is not the place of lawyers to sift through the wreckage of a broken marriage: ‘Objectively, none of us really live those relationships or know what went on perhaps 20 or 30 years. And I don’t think it’s up to us to go right the way through someone’s marriage and apportion blame. It would polarise people more.’

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This does seem rather counter-intuitive however. Where a person’s behaviour – or misbehavior – has led directly to the break-up of a marriage, it seems pragmatic and fair to allow its consideration by judges in the courtroom. A change in statute that admits, to some extent, the relevance of conduct in divorce proceedings, and therefore to financial settlements, would go some way towards aligning the law with common sense.
BUT DESPITE ITS current legal irrelevance, many say that judges’ increasing tolerance of evidence relating to conduct, sometimes brought in by the back door by barristers in court, is further increasing uncertainty regarding financial outcomes of divorces.

As one experienced family lawyer told me: ‘A barrister’s not going to stand up in court and say: “This guy’s a complete shit because he disappeared with his secretary two years ago.” They don’t put it like that – but they might say [something like] “The parties separated two years ago, and at the time the husband had formed a relationship with a sixteen year old girl,” and they’re feeding into the court a conduct aspect.’

The solution is easy to state – namely that judges need to be stricter in court, making it clear they are not interested and will not take into account anecdotal information about infidelity, for example. But, given it exists at the interface of morality and legality, few things in family law are straightforward. Read the Family Law Index in April to hear more about what London’s top divorce solicitors are talking about.
Read more by Mark Nayler

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