We know that a relatively small proportion (only around one-third) of divorcing couples goes to court to get any kind of order dealing with their financial arrangements, and of those, most will arrive with an agreed settlement that they want turned into a binding ‘consent order’ rather than have the judge decide for them. Even consent orders are subject to scrutiny by the court to ensure that their terms are fair and not contrary to public policy, but while this scrutiny should be more than a rubber stamp, the court is not ‘some kind of forensic ferret’, as Waite LJ put it in Pounds v Pounds ( 1 FLR 775), burrowing into the minutiae of what the parties have agreed and querying every detail. Of course, where the couple haven’t reached a settlement and the judge has to decide the outcome of their case, he or she will have to look in depth at the parties’ circumstances and reach a decision based on the law set out in the relevant legislation and case law.
But what is the extent of the court’s duty, in both consent order and contested cases, where one or both of the parties is a litigant in person who has acted without the benefit of legal representation? It can’t be assumed that they will be well-informed about their legal position or able to negotiate or argue from a position of strength. A desire to get matters over and done with, a fear that the other party will prove obstructive if they try too hard to challenge what they are saying, or a lack of knowledge or understanding of the financial details and the legal ramifications may result in divorcees ending up with a sub-optimal outcome. Useful guidance to judges on how to deal with this situation has been provided by Mr Justice Mostyn in a recent financial remedies case, Clarke v Clarke ( EWHC 2698 (Fam)), a case involving a couple in their early 60s.
The wife was a litigant in person and appears to have misunderstood or not appreciated – hardly surprisingly – how best to put forward her case for a share of the former matrimonial home (FMH), worth around £1.2 million, and how to calculate the sum she would require to meet her maintenance needs for the rest of her life in a situation where the main wealth was generated by the husband’s business interests.
At trial, the judge had assumed that if the wife received 80% of the value of the FMH and the husband 20%, this would leave each with roughly half the available assets to live on in the future. With an 80% share, the wife would be able to buy a smaller property to live in and invest the remainder, together with her pension, to produce an income of around £25,000 for life, while the husband would continue to earn a substantial income from his business interests, which could be sold when he chose to retire in a few years’ time, and would share his accommodation costs with his new partner.
The husband’s business assets were, on appeal, found to be worth just under £1.4 million, which was around £250,000 more than they had been valued at trial, and most of the judgment deals with the question of how the valuation should have been calculated. But Mostyn J took the opportunity to review the size of the wife’s share in the home and the expected income that could be generated to meet her future needs.
The planned level of income for the wife was described by the trial judge as ‘very modest’, yet he does not appear to have questioned whether it was appropriate, presumably because it was around the figure the wife herself had asked for. At the appeal, she explained to Mostyn J that ‘she had understood the requirement was to state only the amounts needed to stave off destitution’ (at ). She had also wrongly thought that significant sums earned by the husband during their separation would be granted to her so that there was no need to argue about maintenance. These misunderstandings had resulted in an outcome which left her likely to struggle in the future. .
Although the courts’ general approach is that, in the words of Mostyn J, ‘no special concessions or assistance should be given to litigants-in-person’, he was clear that in a financial remedy case, ‘the court exercises a quasi-inquisitorial function. It would be a dereliction of its inquisitorial duty if it allowed a case to be decided under procedural rules and customs which prevented a just decision being rendered on a particular set of facts because a litigant-in-person has, for whatever reason, chosen not to advance the relevant arguments applicable to those facts.’(at -)
This ‘quasi-inquisitorial’ function stems from the fact that in a divorce, only the court can make a final, binding, determination of the parties’ financial entitlements and liabilities and these must ultimately be decided according to the terms of the Matrimonial Causes Act 1973. If a couple reaches an agreement it can be overturned by a court subsequently if found to be unfair or contrary to public policy (for example, if it leaves one party homeless and dependent on social security benefits when the other could easily afford to support them).
So it makes sense for Mostyn J to have rejected the trial judge’s apparent acceptance of the amount of income that would accrue to the wife from the proposed order and to have looked at the matter again. He decided that, by awarding the wife the whole of the proceeds of sale of the FMH rather than 80%, the extra amount that could be invested could boost her annual income to £48,000, an amount that he considered ‘a reasonable income level for this wife, having regard to her age, the length of the marriage and the marital standard of living’ – especially when set against the husband’s own declared annual income need of £115,000. While this would result in a more uneven split of the assets to 54.5% to the wife and 45.5% to the husband, Mostyn J concluded that it was well justified on the ground of need and where the husband’s own requirements were being amply met by his earnings and his share in his partner’s home.
It is always likely to be daunting to act as a litigant in person in the family courts. This may be especially so in financial remedies cases where, as Clarke v Clarke demonstrates, relatively straightforward or even ‘modest’ arrangements can throw up complexities that may be difficult to understand, let alone challenge. Our research study, the Fair Shares project, funded by the Nuffield Foundation, aims to collect information from couples who have gone through divorce, and answer questions about what financial and property arrangements they have made (or ended up with), what they understood (or not) about the law and legal process, how they made them, and how they’re coping with them. Mostyn J’s reminder that litigants in person should not be left to sink or swim in such circumstances is welcome guidance for first instance judges, whether they are dealing with consent orders or contested applications and provides some comfort for self-represented litigants trying to navigate the system.