Repository logo
 

Rules Versus Discretion in Financial Remedies on Divorce

Accepted version
Peer-reviewed

No Thumbnail Available

Type

Article

Change log

Authors

Hitchings, Emma 
Miles, Joanna 

Abstract

This article draws on data from a recent empirical study to examine the role of discretion in financial remedy cases on divorce, particularly in the ‘everyday’ needs-based cases that constitute the bulk of the caseload in England & Wales. It explores practitioner and judicial experiences and perceptions of the discretionary Matrimonial Causes Act 1973 regime to inform current debates about potential law reform in this area. In particular it provides findings on the issue of geographical variation in outcome as a lens through which to examine the rules versus discretion conundrum. The central argument made is that (1) the rules-discretion question is not a stark choice between opposites, but rather requires a decision about where along a spectrum between those poles to place a given legal regime; and (2) that the issue must be addressed in terms of both (a) substantive principle, where clarity and consistency about what the financial settlement should be seeking to achieve is vitally important, and (b) the law’s practical operation – the fashioning of particular packages of orders transferring value between the spouses – where greater discretion may be necessary to ensure fairness.

Description

Keywords

4804 Law In Context, 48 Law and Legal Studies, 4807 Public Law

Journal Title

International Journal of Law, Policy and the Family

Conference Name

Journal ISSN

1360-9939
1464-3707

Volume Title

33

Publisher

Oxford University Press (OUP)
Sponsorship
Nuffield Foundation (via University of Bristol) (40201)
Nuffield Foundation