Do Divorce Lawyers Ruthlessly Exploit the Uncertainty in the Law?

You may have read a recent article in the press regarding proposed changes to the division of financial assets on divorce. This is FLiP Director James Pirrie’s response on the matter. 

In mid-March, Baroness Shackleton urged divorce reforms on the nation saying: ”Divorce practitioners like me make a fortune in arguing, because the guidelines are 50 years out of date.” It feels such a compelling presentation, truly the stuff of a “poacher turned gamekeeper.”

But I felt then and feel now that the Baroness fails fairly to represent the profession in which she has worked so successfully since the late 70s when she makes this statement.  And she ignores how well our system is served by its legal principles.  Yes, there are lawyers out there who seem to permit cases to roll on far beyond their settlement date and one wonders at their motives sometimes.  However in my experience, working with all sorts of people in all sorts of ways since the early 1980s, these are the exception rather than the rule. (Little wonder. Fortunately people like that generally command little long-term client following and are, in time, forced to move out of this work).

By and large, I find our law works well:

• It is common sense that matrimonial property should be divided between spouses. (“Matrimonial property” is either what has been built up by the marriage, which is generally divided equally, or woven into the fabric of marriage which may or may not mean equal shares). Family lawyers refer to this as the principle of “sharing”.
• It is also common sense that where a couple have made the commitment of marriage, each of them should be given a fair start on the road to independent living. What is fair is assessed against the standard-of-living enjoyed during the marriage and the duration of the marriage.  It is also common sense that the needs of dependent children will be prioritised.  But this is no more than our principle of “needs”.

It is also common sense that the principle of needs prevails over that of sharing.  These twin pillars of “sharing” and “needs” underpin all of the work that we do in settling financial claims.  I accept that in most situations they do not generate a specific set of outcomes.  They are more principles that tell us that any given certain outcome is ‘likely’, ‘possible’ or ‘outside the bracket’.

This is more than enough for those of us pursuing settlements through dialogue.  Our aim in working for those who seek our help at FLiP is to catch people early on and before positions harden.  At this stage almost always the costs of litigating will be greater than the difference between the parties, operating reasonably and with good advice. In such circumstances it should not be rocket science to find a solution and a lot of our work is focused on how we can make finding a solution more likely.

Why is it, therefore, that two lawyers with a great deal of experience have such different views as to the efficacy of the current legal principles?  I suspect it owes most to how we have done the bulk of our work.

• Baroness Shackleton is one of the most renowned lawyers of her generation running litigated cases only in the highest league of wealth and often for the upper echelons of society.

• Meanwhile, I started out doing legal aid in Chelmsford, then worked for a trade union firm, moving into mediation in the late 80s. I have committed my working life to the building of solution and dialogue-based outcomes for people from all walks of life, regardless of their wealth whilst resolutely avoiding the pinchpoints of the court hearings at which Baroness Shackleton has so excelled during her long career.

We should rejoice in our current law that renders us a more civilised society because its flexibility and nuance protect the vulnerable. It also echoes the expectation of parties who have made the commitment of marriage. We have seen the impacts of formula-based justice in the debacles of the Child Support Agency (£3.8bn of arrears) and the Child Maintenance Service (arrears already standing at over half a billion and where only 43% of those paying contribute 90% or more of their obligation).  We should not seek to expand systems adopting that sort of mindset to blight the futures that those who separate are able to make for themselves.