Lives Less Extraordinary: Publishing “Needs”

The President’s Guidance on Transparency from October last year asked all judges to publish anonymised versions of at least 10% of their judgments with the express aim of ensuring that a larger number of judgments were published. The Guidance had noted that only 87 family cases were published in 2019 (222 were published in 2015). Now, Sir James Munby’s previous guidance in 2014 had effectively been ignored and the figure of 10% applies across a caseload (and which a Judge can chose from) but it was hoped that there would be some increase in the of number of matrimonial finance judgments where the capital assets were relatively modest. And so it appears with the recent publication of a small but noticeable number of cases which are inarguably needs cases.

If transparency in the broader sense has been a live issue in family law for thirty years, the problem has always appeared particularly acute for the ordinary matrimonial finance case. Like any area of family law, matrimonial finance has the same inherent tension between privacy and transparency. Perhaps less critically than in a case directly concerned with a child’s welfare but even so. Section 25 of the Matrimonial Causes Act 1973, like section 1 of the Children Act 1989, also confers upon Judges a very broad discretion. A range of outcomes for cases with same or similar facts is built in and a direct consequence of the legislation. And where there is a range of outcomes, there is always likely to be at least the suggestion of inconsistency. Add the positive obligation to settle and compromise (forestalling forever the exercise of that broad discretion) and the charge of opacity together with felt inconsistency is never going to be too far away.

All of which is compounded in matrimonial finance by the simple reality that most reported cases are of limited or no use in the usual case. Most reported cases come from the High Court where the size of the assets is usually going to be greater just by definition. That the assets are greater would be of no consequence if the same principles applied to all cases but they do not. All cases may be decided using the same section 25 but greater wealth engages principles which will only have proper application in those same cases. The principles of compensation and sharing (developed by and for those same higher courts) simply have no bearing on the vast majority of cases. Which is not to say the higher courts ignore “needs” (all things being relative, of course). A great deal has been said about “needs” and its primacy. It is higher court authorities that have put needs first. They do so, however, in the context of there being enough pot to at least meet the parties’ needs. They have a second course to come onto; a surplus to be shared, or not. That the leading cases for “Needs” in At A Glance are Miller/McFarlane and Charman rather says it all. Cases where there is not even enough to meet both parties’ needs just do not get reported.

The problem is not a lack of authorities in the sense of binding precedents. There is not a hole in the advocate’s kit bag. Advocates are not to be found wandering around robing rooms wishing to themselves, “if only there was an authority on needs…” For one, as we are often reminded by the authorities we do have, the statute is the start and the end-point. Any previously decided case is at best secondary. That the notable exceptions of White and its successors are archetypal big money cases nicely illustrates the point. Of course, mere publication does not confer authority. The status of a judgment is only be determined by the status and composition of the original Court together with the relative status of the subsequent Court that is being asked the original Court’s judgment into account. A reported decision of a Deputy District Judge is just that.

But where needs cases are concerned, there has long been a sense that the problem runs (and continues to run) altogether deeper. It is not simply the run-off of some inherent structural tension. There remains a fundamental anxiety that different judges in different court rooms may be doing very different things. None of which is either new or unique to matrimonial finance. Behavioural scientists have enjoyed using judges as examples of idiosyncratic (i.e. bad) decision making for decades (Aside: in last year’s Noise, Daniel Kahneman used the example of various judges in the USA producing very different outcomes in similar factual scenarios as part of his broader argument about our faulty decision-making abilities. He notably based his argument on judicial studies from 1974, 1977 and 1981). Closer to home and within matrimonial finance, practitioners may recall that the FJC’s Guidance on Needs (2016/2018) was prompted by the Law Commission’s stark conclusion (in 2014) that there was both a general lack of transparency in matrimonial finance and an unacceptable level of significant regional differences in the levels of needs-based support. Leading up to 2016, this was often taken to mean (perhaps rather glibly) the perceived contrast between the anticipated outcome, in the Principal Registry, for example, as compared to the provinces when it came to a claim for substantive maintenance, usually on the part of the Wife. It seemed, at least to some, that one man’s joint lives order for periodical payments (in London) was another man’s clean break (outside London). And, “without undue hardship” seemingly never came into it in either location. There was one way of doing it there and another way there, and that was that. The law on periodical payments has straightened out since then and not least because of a series of reported authorities from the High Court. But if we reflect back on what the Law Commission was actually saying (i.e. that there was both a lack of transparency and unacceptable and significant differences in the vast majority of cases) and acknowledge that there continues to be at least uncertainty about broadly uniform outcomes (whether attributable to postcode or otherwise) then it is hard to see what there was to be glib about.

X v C [2022] EWFC 79 (12 July 2022) was very much a needs case. It was heard at Brighton Family Court albeit by a Circuit Judge (HHJ Farquhar), the lead FRC judge in Kent, Surrey and Sussex and the chair of the Transparency Implementation Group. It was heard at Circuit Judge level only because of a relative lack of District Judge availability (another issue entirely). It was published “following the guidance provided by the President of the Family Division in which it is stated that each Family Judge should aim to publish 10% of their judgements” (para 2) and “because there is also a lack of reported Financial Remedy cases other than those that involve individuals that are either wealthy or extremely wealthy and this case does not fit into such categories” (para 2).

The facts were as follows: W is 46 and a nurse. H is 50 and works in IT. W earned £35,143 gross pa and also receives UC and CB. H earned £70,400 gross pa. They have a 7 yearold who lives with W in rented accommodation. W has three teenage children (19,17 and 13) who share their time with W and their own father. Their father lives in the home he still co-owns with W. W has significant debts largely caused by the costs of litigation: some £36,347 on credit cards,  £7,626 loans from banks and £33,358 of “soft loans”. H lives in the FMH with his two adult children. H does not see their child, pays CM and there are ongoing proceedings. H set out debts of £11,645, of which £9,601 was borrowed to clear a joint overdraft. The parties cohabited from late 2012, married in 2013 and separated in 2019.

The assets were the FMH with net equity of £270,000. There was also the property the W co-owned with her first husband of £85,000 – £105,000. There was a plot of woodland of £45,000 that H said he had gifted to his son. W had an NHS pension of £230,835, of which £70,000 had accrued during the marriage. There were vehicles of disputed value (W contending £35,000) which H said he had gifted to his son.

Both parties had made open offers. W sought an order for sale of the FMH with H receiving £50,000 and an order for nominal spousal periodical payments. H offered a lump sum of £25,000 and a clean break which became a lump sum of £15,000 and £500 pcm for 5 years. HHJ Farquhar would unsurprisingly describe both offers as “wholly unrealistic”.

H had sought to argue that the £80,000 deposit for the FMH that he had paid out of his previous divorce should be taken into account as a pre-marital contribution. The fact of the contribution was accepted by W. The Judge stated, “The reality is that in a needs case such as this the court needs to take into account all of the assets, but it is accepted that the premarital contributions made by either party cannot be ignored. However, the matrimonial home is considered somewhat differently to other assets as it has a unique place within the parties’ relationship (per Miller/McFarlane) and is almost always considered as a matrimonial asset. There can be no question in a ‘needs’ case such as this of the Court  being able to ‘ring-fence’ any asset as pre-marital and not considering  it for distribution between the parties” (23).

In respect of W’s previous property, “It must be right that this asset is taken into account as an asset in the Applicant’s name as, if it had been realised at the time the parties purchased the matrimonial home, then the Applicant would have been able to make a significant contribution towards the purchase and she was not able to do so as her assets were still tied up within her original matrimonial home.  To that extent the argument put forward by the Respondent in relation to the deposit that he paid for the former matrimonial home is somewhat stronger than it would be in other cases” (28).

Whilst W’s previous property could be utilised in due course, it could not be used any time soon because of the children. The Court dismissed H’s assertion that he had transferred the woodland and vehicles and further found that H had sought to defeat W’s claim. A section 37 application, if it had been made, would have succeeded.

W’s pension was not in issue. However, the Judge noted, “In relation to pensions in Financial Remedy proceedings the starting point is always that which is set out in the Report of the Pension Advisory Group in 2019. In terms of a ‘needs’ case such as this it is stated that “In a ‘needs’ case the Court can have resort to any assets to meet the parties’ needs; in such cases it is rarely appropriate to apportion the pension based on the length of the marriage and the existence of the pension.” As such it is not hugely important in this case to carry  out any complicated  or precise calculations  as to what percentage of the Applicant’s pension was accrued prior to/post the marriage” (44). The Judge noted that there were various ways of calculating apportionment but that in the circumstances a “straight line” method would be most appropriate (which would produce a cash equivalent figure of £70,000).

Both parties had produced poor mortgage capacity evidence. The Court had “very little information as to the true current borrowing capacity of the parties…It is unfortunate that the Respondent failed to do this as it means that the Court is bereft of this important information. However, a Court can only deal with the evidence that is placed before it by the parties and not the evidence that is not provided” (51).

It was ordered that the FMH be sold. They would otherwise keep their assets. W would receive £150,000. From this she could pay her debts in full (including soft debts) and have a remaining figure of £80,000 which could be put towards a property in 5 – 8 years’ time when her previous FMH could be sold too. H would receive £100,000 from the property. If he were to sell his assets and pay off his debts then he would have a figure of £150,000 for a deposit. There would be a clean break.

Notably, when setting out the law, HHJ Farquhar quoted Peel J’s judgment in WC v HC [2022] EWFC 22. A perfect example of how the publication of a judgment circulates an idea and can have a wide effect on both the bar and bench.

The Judge’s reasoning (“What is the Fair Order to make?”) is worth quoting in full:

  1. The Matrimonial Causes Act s.25 makes it clear  that first consideration must be given to the welfare of any child of the family. In general, that is dealt with by ensuring that a suitable property can be purchased to accommodate such children.  That is simply not possible in this case. In such circumstances the Court must strive to achieve an outcome which is fair to both parties and puts them in a position whereby they will be in the best position possible to obtain such accommodation in due course. For the Applicant in this case that requires that she is able to be debt free and, in a position to be able to obtain a mortgage once her original matrimonial home is sold in anything up to 5-8 years’ time. In terms of the needs of the Respondent; the Court is satisfied that they can be met by way of being in a smaller property than the former matrimonial home as there is no duty for the Court to take into account his independent adult children, however desirable that such an outcome might be.
  2. The Court must simply ‘do the best it can in the ‘circumstances’  when the overall financial position is not sufficient to provide the required accommodation for both parties, whilst producing an outcome that is fair to both parties.
  3. The Respondent set out in his closing submissions that the most cost  effective outcome would be one that avoids a sale of the former matrimonial home. That is certainly correct but can only occur if he is in a position to raise sufficient capital to pay to the Applicant a reasonable sum. The Respondent was clear that £50,000 was the maximum that could  possibly be raised in this manner and I am satisfied that this would not be a sufficient sum to produce a fair outcome as set out above as it would not even cover the hard debts of the Applicant.
  4. The former matrimonial home will need to be sold. That will release a total of £250,000 equity. The sharing principle would state that the starting point would be for this sum to be divided equally between the parties, but in a ‘needs’ case this is not the case.  I have reached the conclusion that the least that the Applicant can  receive is the sum of £150,000 from the sale, which must be set out in percentage terms rather than as a set figure to allow for price fluctuation. This would mean that she would be left with approximately £80,000 upon payment of her pressing debt.
  5. As set out above, this will not be sufficient to purchase a property as she has little mortgage capacity at present, due to the fact that she is still liable under a mortgage with her first Husband. It will mean that the significant sums that she has to pay out to service her debts each month will be reduced substantially. However, once the Applicant receives the lump sum her Universal Credit will cease  and that is presently a figure of £1,300pm. The Respondent argued that this was why the Applicant should not receive any capital  above £15,000 as it would affect the benefits the Applicant would receive. The Court cannot approach any claim in such a manner as it is contrary to public policy.
  6. It is likely that the Applicant will have to continue to rent a property and it may well be that she will have to utilise some of her capital  to assist her to do this. The mid to long term financial position of the Applicant is one that will improve. As stated above, her childcare responsibilities will reduce over the coming  years and the housing need for both her and her first Husband will also reduce as her children achieve their majority. This will mean that the income of the Applicant will increase, and the amount of capital required to meet her housing need will reduce as there would be fewer people to accommodate on a full time basis. This should lead to the Applicant being in a position to be able to purchase a property at some point in the next 5 years by which time she will still only be aged 51 and will have sufficient working life left to be able to obtain a 20 year mortgage or thereabouts. Once she is able to realise the £90,000 from her original matrimonial home together with whatever capital is left from the lump sum that she receives pursuant to this judgment then I am satisfied that there will be sufficient to purchase a property. This may be outright or on a part ownership basis.
  7. The impact of such an order upon the Respondent will mean that he and his adult children would be required to leave the home that they have known for 10 years. However, I am satisfied that he would be able to purchase another property. He will have capital of close  to £100,000 from the sale of the property together with the £70,000 from his other assets. It is a matter for the Respondent as to whether he decides to realise those assets or not, but in a case where the resources are as limited as they are, the Court simply has to take such assets into account. This would leave the Respondent with a deposit in excess of £150,000 and I am satisfied that he is likely to be able to obtain a mortgage in the region of £200,000, leaving him with a housing fund of £350,000. This will be sufficient for his needs, although not as great as he would desire.
  8. There is agreement that each of the parties shall retain the assets in their name and it is clear from the analysis above that I have concluded that this is appropriate. This will include the NHS pension of the Applicant.
  9. The Applicant has sought an order for nominal periodical payments until the child of the parties achieves the age of 18. The Respondent has sought a clean break. I accept that it is usual to make an order for nominal periodical payments when there is a young child.  However, there is significant animosity between the parties, they have been (and continue to be) involved in highly antagonistic litigation and the Applicant is in well paid stable employment. The Court should strive towards a clean break if it can be achieved without being unfair to either party. I am satisfied that this can occur in this case and the parties require a total financial break from each other, save for that relating to continued payments for the child.  There will be a clean break in relation to all claims.”

On the part of H, there was repeated non-compliance with directions. The Court made a finding that H had purposefully prolonged proceedings. The original Final Hearing in January had been adjourned only the day before when H had claimed that he had Covid. Previously, H had unsuccessfully appealed the original listing decision for that date. The Court would find that H had not in fact had Covid and ordered H to pay the £4,000 costs of that aborted hearing. H sought the published judgment to include the parties’ names. W sought its anonymisation. H’s motivation, the child’s Article 8 rights in light of the ongoing proceedings, the lack of media interest and public significance of the parties’ names led the Judge to conclude that the judgment should remain anonymous. The Court applied the principles set out by Mostyn J in Gallagher v Gallagher [2022] EWFC 52 and conducted the balancing exercise to be considered on the making a reporting restriction order per Re S (A Child) [2005] 1 AC 593. The Court did note, however, that the guidance on anonymity from the High Court is not clear. Xanthopoulos v Rakshina [2022] EWFC 30 (Mostyn J) suggests that the case should be reported without anonymity unless the Court has made a reporting restriction order but then the later judgment of Peel J in VV v VV [2022] EWFC 41 was published without addressing the issue of anonymity.

This case cuts no new ground. But to look for new ground in it is to rather miss the point. It is a very good example; and we need those. A published case from the coalface is not going to land a killer blow as an authority. It cannot. It would be a mistake to confuse transparency (and all its advantages) with precedent.

That said, there does seem to be a useful space in between, particularly for experienced and lead FRC judges who themselves may be said to sit somewhere in between (often as appellate tribunals). Over the last 18 months or so, examples such as P v Q (Financial Remedies) [2022] EWFC B9 (HHJ Hess and “soft loans”), the pensions/equalisation of incomes/needs cases of W v H (divorce: financial remedies) [2020] EWFC B10, KM v CV [2020] EWFC B22 and RH v SV [2020] EWFC B23 (offshoots themselves of the PAG report: which, in itself, has had more of a unifying effect than any other case or guidance over recent years), have all proved of far greater use and value than any number of High Court judgments. For now, at least, they seem just as likely to be cited in Family Courts as any other.

Even if ordinary but published cases will not directly impact subsequent decisions, it also stands to reason that such cases (alone or together) ought over time come to have a real effect on the way we do things and, at least indirectly, impact on subsequent decisions. By merit of publication alone, a case is added to the general conversation and a better and more uniform way of doing things stands to evolve. And which, even leaving the principle of binding precedent to one side (a principle already circumscribed not by legislation per se but statute that legislates that its judges should have a very broad discretion), sounds rather like a healthy description of a common law system working well.