Top family judge’s plan to introduce a new divorce court is an excellent idea that the media has failed to grasp

Misleading headlines about financial remedies

Recently the President of the Family Division, Sir James Munby, proposed a pilot financial remedies court in London, South East Wales and the West Midlands to separate out divorce proceedings and the financial proceedings that tend to flow from them. Initially, the plan is that the courts will deal with ancillary relief cases, i.e. financial remedy claims within marriage/civil partnership dissolution/nullity/judicial separation proceedings, but in due course this will be extended to all types of family financial remedy cases.

This concept is not entirely new and can be seen as building on the current family court and Court of Protection models. Each circuit will typically have two regional hubs, headed by a lead judge who is an expert in financial remedy work. Mr Justice Mostyn is to lead this pilot scheme as the lead judge; while His Honour Judge Hess will be deputy lead judge. The pilot scheme will start in February 2018.

But why de-link the two?

In May 2017 Munby argued that divorce requires little judicial assistance while financial remedies often entail heavy judicial involvement. As such divorce should be streamlined so that the administrative issues of divorce are separated from its more complex financial issues, allowing judges to focus on the latter and provide a rationalised and effective end result.

“Has the time not come to bring about a complete de-linking — separation — of divorce and ‘money’,” Munby asked, “so that they are started and pursued by completely separate processes, albeit, of course, that the timeline for ancillary relief is determined by the progress of the divorce? My view, which I have been propounding for some time, is an unequivocal and emphatic yes!”

Moreover, divorce is the end of a marriage and a marriage is a union of two people. Those two people did not have to have their union approved by a judge when choosing to get married, so why should the end of that same union require a judge’s permission? Judicial involvement in the process of divorce itself is limited, unless the petition is defended which is rare — although Owens v Owens is making headlines. It is also important to note that not all divorces result in financial remedies proceedings. As such the court procedure is wholly unnecessary to embark upon in those cases.

The need to have a Financial Remedy Court (FRC) is obvious for the parties in the proceedings, as well as those who have been involved in the proceedings in a legal capacity.

The proceedings require expert judicial deliberations, implementation of precedents and a full valuation of the facts of the case and the disclosures made. It is not the end of the union but the assets of that union that necessitates judicial guidance. The scheme also includes a provision that only specialist judges with expertise in financial remedies can sit as judges at FRCs. Having specialised ‘ticketed’ judges hearing financial proceedings will make the process more efficient as they are experienced in the area of law and will thus provide faster, better reasoned decisions with heightened predictability — which is better for the couples who acquire considerable legal bills to divide their assets.

This divorce of the procedure is surely required, but what is unhelpful is certain newspapers’ depiction of the introduction of financial remedy courts.

The pilot scheme has been called a divorce court that specialises in the “super-rich” or “new courts to hear the super-wealthy battle over finances”. This is unhelpful, as the point of the FRC is not to be available for those with big assets but to be available for those with complex issues in their asset division post-divorce.
The legal community on Twitter has been quick to step in to point this out, James Turner QC from 1KBW has referred to the misleading headings and said:

The very point of my original tweet is that it is NOT a specialist court for big money cases, but a specialist court for money cases.

— James Turner QC (@JamesTurner37) December 5, 2017

Helen Brander, a family lawyer at Hind Court, has commented:

“The headline should make clear that, actually, those with modest assets for whom division has the most impact will benefit from the experience of specialist financial remedy judges in their local courts.”

It is quite striking that the media finds the need to refer to the super-rich or super-wealthy, when in nowhere of Munby’s statement can such reference be found. Are the headlines being used due to a misunderstanding, or to simply evoke a reaction and sell papers? Whatever the reason, complexity does not equal wealth in all cases, and people going through such proceedings or contemplating such should not be misled.

Adiba Bassam is a BPTC graduate and an aspiring barrister, currently working as a legal assistant at a London chambers.