The law aims to be fair for the majority

Sometimes a constellation of circumstances conspire to make the Law seem inexplicable. This is especially the case when someone has behaved badly – or when the law works in such a way that people think it produces an unfair result. BUT it isn’t that simple. Mary Banham-Hall lawyer mediator explains why.

The newspapers have recently reported that Julie Sharp is appealing a court decision to give her husband from whom she’s divorcing £2.7m of her total fortune of £6.9m after 4 years of marriage with no children.  She worked throughout as an energy trader and earned most of the income – and following redundancy her husband project-managed the refurbishment of two houses. His case was for half the increase in the value of assets during their marriage on the basis the ‘matrimonial acquest’ is shared equally, which it usually is.  In a short marriage pre-marital contributions are retained by the spouse they belong to, so long as needs have been catered for – but the increase in assets value during the marriage is halved. In this instance it is rumoured the husband was unfaithful – but the law is well established that the reasons for the divorce are irrelevant, so it may make people think this is very unfair.

Lady-justice-Dublin-L

At the moment in short marriages the following principles apply:

  • reasonable needs should be met, reflecting the length of the marriage and its effect, if any, on the parties – especially the birth of a child
  • this may just involve a sum of money to enable someone to adjust without due hardship to their single-again status
  • Any increase in the value of assets during the marriage is usually shared

These simple enough principles alone cause enough trouble over interpretation – what are reasonable needs? What is a fair sum to enable someone to adjust to the split without undue hardship? What is a short marriage? How much is the matrimonial acquest? Then running through all the legal arguments are the following not-to-be-forgotten factors:

  • What does all this argy-bargy cost in relation to the likely settlement figure? Is it value for money?
  • How much of the argument is related to conflict generated by the break-down of the relationship – and the reasons for that?
  • Is the legal debate an outlet for the parties’ anger and grief and sense of injustice? Might there be a need to ‘win’ especially if you feel you have been done down in some way? Is litigation an appropriate outlet for emotional drivers?

Against this background the Sharp case delivers a less obvious decision to the judge hearing the appeal, which is this:

Either:  Do we keep the certainty we currently have, where the matrimonial acquest is shared – in many if not most cases this will be the fairest result? Certainty on such a common issue means outcomes are clear and there is then less likely to be litigation over who gets what in many cases to come.

Or:  Do we open a Pandora’s Box and tailor judgments more closely to the personal merits of each case, thereby ending up with a range of seemingly incompatible precedents? This latter inevitably leads to lawyers being unable to advise clients with any clarity as to probable outcomes – which in turn leads to a proliferation of court cases based on the merits of this that or the other situation.   Seemingly harsh and ‘unfair’ decisions can be much better for the rest of the population who have disputes – as they know with a degree of clarity what they are going to get and there’s no point in litigating for something unachievable. Sad cases make bad law.  It is this, at the end of the day, which in my view means the Sharp appeal is likely to fail, if a family mediator is allowed to have an opinion on such matters!

 

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