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Peter Graham Harris
Oxford Centre for Family Law and Policy, DSPI, University of Oxford
There is a strong case for providing legal certainty in the law governing the civil or criminal liability of individuals by promulgating rules that allow citizens to predict whether they are or would be liable for certain acts. However, the argument for retaining judicial discretion in disposing of cases once liability has been established (whether by way of a criminal sentence, damages or other remedy) is widely accepted as necessary to securing a just outcome in individual cases. However, in the case of financial orders on divorce there appears to be some enthusiasm for eroding judicial discretion and denying parties that element of justice in determining disputes, for example, by introducing formulae or fixed rules of division. That apparent contradiction may arise from a failure of commentators to recognise that in most disputes about financial resources on divorce, liability (for example parenthood or marital or divorce status) is not in issue. What is in issue is the just disposal of the admitted claim given the individual facts of the case. That 'category error', it is suggested, may explain in part why many commentators argue for diminishing judicial discretion in favour of arbitrary rules in disposing of family cases, while resisting such an approach in other areas of civil as well as criminal law.
To read the rest of this article, see July  Family Law journal.
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