Wednesday, December 19, 2012

Certainty in Divorce payouts better than fairness?

Our current system for dividing the spoils upon divorce is the most uncertain of all. It is based upon an individual judge's view of what is fair. The judge has to take all factors of the case into account and apply the law based on individual facts. Consequently it is difficult to predict what will happen on an individual case by case basis.

The Law Commission is reviewing this and as reported in the Evening Standard  "divorce judges welcome "cookie cutter" share out plan".

"The aim would be to ensure greater consistency in judges’ decisions and give couples greater certainty about how much each will receive if they decide to split. The Law Commission, which is studying the idea for ministers as part of a wider overhaul of divorce legislation, also believes that the reform could reduce conflict and the cost of divorce cases by making people less likely to pursue unrealistic claims.

Critics of the system, which was introduced in Canada in 2008, claim that it leads to “cookie cutter” justice in which the size of divorce settlements becomes too fixed, rather than decided on the merits of each individual case."

There would be a formula which judges could depart from if necessary. Formula's are used in criminal cases and personal injury cases and they are used in family law cases in other countries. For example in Scotland spousal maintenance is only paid for three years. The formula is also used for child maintenance. Why not spousal maintenance and capital division? It could be related to the length of the marriage,the number of children and the relative earning capacity of the parties.

There would be an upper and lower limit which judges would work with them. Currently the upper and lower limit is what an individual judge considers is fair. The judge can be influenced by the manner in which a case is presented and the way in which the parties conduct themselves.

A formula would indeed reduce uncertainty and reduce meritorious claims.

In my experience more people are prepared to proceed to a Final Hearing since the law changed to remove costs orders in the majority of cases. It used to be that if you made an offer which the other party did not accept and which you bettered at court you would receive your costs if the offer had been outstanding for 28 days or more. The risk of paying both party's costs encouraged people to negotiate and settle sooner. Now more people are prepared to risk the costs of a final hearing given the fact that the outcome can be so different. People even proceed ignoring legal advice and potentially represent themselves.

I consider that a formula would indeed be of assistance and a curtailment to litigation.

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