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'The current divorce and financial provision law (not to mention the law relating to unmarried partners) is no longer, I suggest, fit for purpose. It was designed in a wholly different era to deal with a wholly different society and way of life. In the immortal words of John Cleese, it is a dead parrot. It is no more. It has gone to meet its maker. Or should do. The Matrimonial Causes Act 1973 with all its layers of crustacean growth needs to be humanely killed off and given a decent burial and the heroic efforts of the Supreme Court to maintain the life support system need to stop. The Act has, quite simply, had its day.'I do not agree with Sir Paul. Hence my title.
'The Constitution ... is not a foreign object imposed on us by the dead hand of the past, but an evolving reflection of our deepest commitments.'So too, I would argue, is our statutory divorce law.
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'I conceive that I must take into consideration the position in which they were and the position in which she was entitled to expect herself to be and would have been, if her husband had properly discharged his marital obligation.'Although the scope of matters the court was mandated to take into account was made more extensive it is hard to see whether they actually encompassed any matters beyond the more laconic 1857 phrase 'as the court thinks reasonable having regard to her fortune (if any), his ability and the conduct of the parties'.
'Uncertainty of outcome creates an industry for lawyers to litigate. It makes it difficult or impossible to have successful mediation, and the financial costs —not to mention the unquantifiable human cost mentioned by many noble Lords, aggravated often by delay because the courts are too full — are vast and unnecessary. The Bill seeks to limit the discretion of a court and provide direction from Parliament for matrimonial finance.'I do not agree that the present system is replete with uncertainly. Were we to scrutinise a case study today I would warrant that the overwhelming majority would be within a few percentage points of the mean. Put another way the standard deviation would be low. I am sure there would be some outliers but the standard deviation graph would be shaped more like a bell than an upturned saucer; of that I am convinced.
'It has to be recognised that there is always a tension in deciding what the statutory framework should be for the management of the affairs of the disputing couple post marriage. There is a tension between certainty on the one hand and fairness on the other. Certainty can be achieved by careful drafting of legislation, but fairness depends on the circumstances of the individual case. However, individual cases and people are different, and people have different problems. The greater the certainty, the more likely that the rigidity of whatever the certain system is that has been decided upon will produce, in some cases, unfairness for one or other of the spouses. That is the justification for giving the judges the huge amount of discretion they have under the present statutory framework. Maybe that leads to more dispute and litigation than is desirable; maybe the judges should not have so much discretion. To introduce more certainty or cut down on the discretion would be at the expense of fairness. That is a very difficult balance to strike. The advantages of certainty will not solve satisfactorily all the problems, because the same answer does not necessarily produce fairness for everybody.'In the immortal words of many an appellate wingman I say 'I agree and have nothing (more) to add'. So this is why I conclude with my title.