Vardags Family Law Essay competition 2023/24 | Nnemdi Audrey Ozoemena

Nnemdi Audrey Ozoemena - BPP University

The Dangers of Prioritising Autonomy: Thoughts on Alternative Dispute Resolution, Prenuptial Agreements and Access to Justice in UK Family Law.

Family law in the UK has seen increased prioritisation of the value of autonomy in recent years. Worryingly, what appears pervasive is a tug-of-war between autonomy and justice in the traditional, legal sense. This essay will discuss the effects of autonomy within the family law system, considering the approach of courts to prenuptial agreements, the push for alternative dispute resolution and access to justice. Ultimately, it will suggest potential solutions to the issues that the prioritisation of autonomy has wrought, such as offering a broader range of dispute resolution routes, and overall, an approach that does not sacrifice safeguarding and substantive justice for autonomy.

Autonomy-as-Justice: In Concept and In Practice

The prioritisation of autonomy is linked to the positioning of family law and family law matters as being intrinsically ‘private’, with the high value placed on privacy manifesting itself both conceptually and procedurally. Coming at it from a more abstract level, there is the concept of ‘autonomy-as-justice’, which essentially posits that an outcome in a family dispute in which the parties have consensually participated is fair because of this participation, rather than because said outcome is substantively just. This approach pits individualised ‘justice’ based on an apparent desire to protect individual autonomy within the family justice system against substantive justice based on legal merit, often protecting the former at the expense of the latter. The danger here, in addition to the blurring of the already somewhat obscure idea of ‘justice’, is that disputes within family law are not subject to the same judicial scrutiny that disputes within other areas would be. This opens the door for power imbalances between parties involved in disputes to go unchecked.

On a more practical level, we see the prioritising of autonomy in the policy emphasis on alternative dispute resolution, and specifically, mediation (as opposed to adjudication); in recent approaches of courts to prenuptial agreements; and, possibly most alarmingly, on access to justice. A major argument in support of such prioritisation is that family disputes are intrinsically private, offering little or no public benefit. Lord Neuberger (as well as this author), opposes this view, which is one that has been expressed by the Ministry of Justice. Instead, he suggests that the public benefit comes from securing the rule of law. Indeed, can the argument not be made in favour of the family justice system doing justice for justice’s sake? (It can).

In examining the effects of prioritising autonomy within the family justice system, several values come up as being at odds with one another. There are themes of public versus private; certainty versus fairness; paternalism versus intervention; individualized versus substantive justice and, one might argue, autonomy versus everything. The prioritisation of autonomy from a public policy perspective will be discussed later in this essay. But first, let us consider a pivotal case that showed the highest court’s willingness to put autonomy at the forefront.

Radmacher: A ‘Prenup’ Paradigm Shift

A main area that has been subject to the effects of prioritising autonomy within family law is the approach of courts to prenuptial agreements or ‘prenups’, as they are casually called. Right away, it is important to note that the Matrimonial Causes Act 1973 governs the division of marital property upon divorce, and it gives the courts discretion to determine what each spouse walks away with upon divorce – there is no marital property regime in the UK.

That said, a pivotal case, Radmacher v Granatino, marked a shift in the courts approach to prenups. This case concerned a couple who had married in Germany with a prenup in place, and eventually divorced whilst living in England. The case made it to the Supreme Court and the question of the prenup’s enforceability was considered. The decision on this matter was that unless a prenup is unfair, a court must give it decisive weight. This precedent-setting case seemed to have been decided with heavy regard given to the respect for and protection of individual autonomy. Lord Phillips’ stance against the paternalism that the court would show (in his view) by overriding an agreement made by two individuals on the premise that the ‘court knows best’, indicates this emphasis on autonomy.

The problem with Radmacher is that, whilst on its face it proports to place the caveat of fairness on the enforcement of prenups, this is not very useful as it neglects to define fairness in this context. Guidance is not given, and the facts of Radmacher even seem to suggest that the lack of sound legal advice on one side of a prenup will not necessarily make it unfair. So, a troubling side-effect of the prioritisation of autonomy in this case is that independent legal advice and comprehensive disclosure, which were prior given strong consideration, have a diminished effect.

The approach that prenups would be enforced unless they were unfair, rather than potentially that they would only be enforced if found to be fair by the courts (as suggested by Lady Hale), shows the family justice’s systems growing tendency to assume that autonomy exists, rather than to investigate whether it does for both parties. Autonomy’s prioritisation seems to show a move towards ‘contractualization’ of family law, and the divergence of opinion in Radmacher demonstrates this perfectly. Giving a strong dissent, Lady Hale adopted ‘family law reasoning’, emphasising the need for the law to protect more vulnerable parties financially. On the other side, there was ‘commercial law reasoning’, which sought to ensure that people who enter into contracts are bound by them.

Whilst it may be optimistic to hope that, following Radmacher, courts would search for any unfairness, broadly defined, before giving decisive weight to a prenup, V v V indicates otherwise. This case, which took place a year after Radmacher, involved a clear power imbalance, whereby the financially weaker spouse had not been given disclosure of the other’s assets before signing the prenup, and there was no independent legal advice. Charles J acknowledged the skewed power dynamic and the pressures that the more vulnerable party faced to enter the prenup, but effectively put these aside because both parties had willingly entered into the agreement. Again, we see a more commercial-law-like approach prevailing.

But, as Cotterell notes, a prenup is ‘not the same as a standard insurance contract’. Couples typically do not enter this agreement in the same way people enter into arms-length commercial contracts. Prenups create a uniquely intimate context that has the potential to bring up mismatched power dynamics. So, it is perhaps not the best approach to allow this aspect of family law to be ‘contractualized’ in this way, as it serves to strengthen autonomy at the expense of safeguarding.

Over a decade later, the effects of Radmacher can be seen in cases as recent as the 2023 case of MN v AN, where unfairness was measured with the Radmacher yardstick of being ‘not unfair’. Whilst this case does not appear to be particularly problematic (one party did cite undue influence but the court disputed this and indeed there was no real evidence in support of this claim), it does reinforce the common law strength of prenups today, and the ever-prevailing autonomy principle. Interestingly, this case did bring up debates around whether certainty or fairness is more important in deciding the enforceability of prenups; and indeed, whether certainty begets fairness.

The idea that an agreement entered prior to marriage provides a level of certainty that means that such an agreement is, in and of itself, fair, brings up several of its own issues. For one, the position of individuals can change over the course of a marriage, with one becoming financially dependent on the other over time. This could happen because one party makes more non- financial contributions of labour to the marriage or household. Such divisions of labour and subsequent dependencies are often gendered, with women making the bulk of non-financial contributions. This, coupled with the more commercial law approach by the courts which presumes that a prenup is signed by genderless individuals on equal footing, exposes another dimension of problems with the ‘autonomy first’ approach.

There is much more to be said about the gendered issue with autonomy in the context of prenups, but that is beyond the scope of this essay. Instead, this essay seeks to examine some of the broad effects of prioritising autonomy within the family justice system.

In addition to setting a precedent in favour of giving prenups decisive weight, Radmacher was also a turning point because it made clear where prenups stood in light of public policy, with the court strengthening prenups as far as it could without going against the MCA 1973. The case was demonstrative of the increasing prioritisation of autonomy within both law and policy. On the policy side, we see this phenomenon in the rise of, and the push for, alternative dispute resolution within the family justice system.

‘Do-it-Yourself’ Justice: ‘A’ for Autonomous Dispute Resolution

If Radmacher can be said to have sacrificed safeguarding for autonomy, then the policy push for alternative dispute resolution (ADR) seems to trade some of the strength of substantive justice and the rule of law within the family justice system for the benefit of protecting and promoting autonomy. Indeed, as Diduck remarked, the ‘A’ in ADR has come to represent ‘autonomous’. This is far from ideal.

To be clear, ADR has been an important part of the family justice system for a long time, and that by itself is not necessarily problematic. What is problematic is that the push to give priority to autonomy has seen ADR become the very essence of the family justice system. The de facto position of courts and policymakers alike appears to be to steer family disputes away from the formal justice system, in pursuit of what Semple describes as family law’s ‘settlement mission’. That is, the promotion of ADR to encourage parties to settle any conflicts or post-divorce matters independently and outside of the courts. The foundation for this is the view that legal disputes that arise within the family context are more relationship issues than legal ones. Such a perspective presents family disputes as unsuitable for adjudication, and formal law as an unsuitable avenue for dealing with such disputes.⁴⁷ Notably, it may well be the case for many family disputes that a more informal resolution process is more beneficial. However, there is a clear problem when parties are directed away from formal law as a source of recourse by default.

The de-legalisation of family law in this way shields disputes from the level of scrutiny that the formal legal system stands to provide, depriving them of the standards of substantive fairness and the rule of law that courts are best equipped to uphold. This is especially true considering that the form of ADR favoured by policymakers now is mediation, which brings up similar issues of power imbalances as we saw in Radmacher. Where one party is in a weaker position in the relationship or more vulnerable – particularly where domestic abuse (physical or otherwise) has occurred – the process of mediation leads to unfair outcomes that favour the more powerful party. This is because the parties are not able to take part in the process on equal footing.

Mediation, then, allows only for the stronger party to a dispute to exercise their autonomy, whilst the weaker is trampled on. Despite this, applicants are required to consider mediation before they can take a dispute to court (via Mandatory Information and Assessment Meetings or MAIMs), and legal aid for other forms of dispute resolutions have been cut down. So, we see policymakers doing the same as the supreme court did in Radmacher: presuming that all parties to family disputes have unqualified autonomy and shaping law and policy around this (arguably false) presumption.

So, is mediation altogether bad? No. It has its advantages as a participatory form of justice, and it has a place within the family justice system. It is the unjustified policy emphasis on mediation in line with the autonomy-as-justice approach that is the issue. Instead, a more useful approach may be, as Barlow et al suggest, to replace MAIM with a ‘Dispute Resolution Information and Assessment Meeting or DRAIM’. This would be a triage where different potential methods of resolving family disputes, including other forms of ADR and adjudication in court. With this approach, the family justice system can avoid shoehorning all parties into mediation for the sake of autonomy and at the potential expense of doing real justice.

The problematic policy emphasis on mediation connects neatly to the third major autonomy- as-justice caused issue that this essay will discuss: access to justice.

Autonomy, Automoney, money, money…money: Legal Aid Cuts and Access to Justice

Following the cuts to legal aid by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the only dispute resolution avenue to which legal aid remains available is mediation. But, as earlier noted, access to mediation alone is not access to justice.

Contrary to the government’s apparent expectation that parties would exercise their autonomy and give into the push towards mediation, there has been a rise in people taking cases to court and, instead of paying for lawyers, appearing as litigants-in-person. This rise is so stark that self-representation in family disputes (particularly for divorcing couples) has been termed the ‘new normal’, and there have been numerous calls for a redesign of court procedures to suit lay individuals instead of lawyers. The rise of self-representation out of necessity is not only difficult and frustrating for the litigants themselves but is also burdensome to the court system. So, we see yet another undesirable side-effect of the autonomy-as-justice approach.

When looking at the issue of access to justice it is, of course, important to consider those potential litigants who have additional vulnerabilities. Notably, legal aid is still available to victims of domestic abuse, but the gap here is that getting access to this aid requires applicants to produce one of listed forms of ‘evidence’. The requirements here place heavy emphasis on physical abuse, and other forms of abuse such as coercive control would likely fail to produce the sort of evidence required. So, a victim of coercive control may find themselves forced to choose between self-representation due to lack of funding or resorting to mediation which, as mentioned earlier, is not likely to be an ideal route for such a person.

Legal aid cuts have disproportionately affected family law cases. It is difficult to disconnect this from the increasing prioritisation of autonomy within the family justice system based on the conception of family disputes as primarily private relationship matters as opposed to legal disputes. The underlying implication appears to be that ‘private’ family disputes ought to be approached with the prioritisation of autonomy at the forefront; with themes of privacy and autonomy serving almost as justifications for the cuts to legal aid for family cases.

The contemporary family justice system appears to have iconised the values of freedom and independence as ones that go hand in hand with autonomy, and which ought to be given priority in the ‘private’ arena of family. But, as Herring argues, independence and freedom are ‘false gods’ in the context of family law. The reality is not so neat – there are imbalances of power, vulnerabilities, and complications across the family law landscape, which make the autonomy-as-justice approach far too simplistic and unfit for purpose.

Conclusion

This essay has explored some of the main areas within family law that the prioritisation of autonomy has pervaded. It has taken the position that the autonomy-as-justice approach within contemporary family law is problematic because it neglects the family law approach that values equality and protecting the vulnerable in favour of the commercial law approach that often favours rationalisation and does not make room for the consideration of individual circumstances. Broadly, this essay has suggested that courts and policymakers reprioritise the values of safeguarding and substantive justice ahead of autonomy within the family justice system.

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References

Cases

Radmacher v Granatino [2010] UKSC 42 [2011] 1 AC 534 MN v AN [2023] EWHC 613 (Fam)

V v V [2011] EWHC 3230 (Fam) [36]

Legislation

Legal Aid, Sentencing and Punishment of Offenders Act 2012 Matrimonial Causes Act 1973

Bibliography

A Barlow, R Hunter, J Smithson and J Ewing, Mapping Paths to Family Justice Briefing Paper and Key Findings (2014) University of Exeter, University of Kent and ESRC

Civil Legal Aid (Procedure) Regulations 2012, Reg. 33 and Sched. 1

Diduck A, ‘Autonomy and Family Justice’ (2016) 28(2) Child and Family Law Quarterly 3

Diduck, ‘Justice by ADR in private family matters: Is it fair and is it possible?’ (2015) Family Law (May)

Hunter R, ‘Contemporary Issues in Family Law in England and Wales’, The Cambridge Companion to Comparative Family Law (Cambridge University Press 2019)

J Herring, Relational Autonomy and Family Law (Springer 2014) Legal Aid, Sentencing and Punishment of Offenders Act 2012

Ministry of Justice Family Court Statistics Quarterly

Ministry of Justice, Supporting Earlier Resolution of Private Family Law Arrangements Government Response on Resolving Private Family Law Disputes Earlier Through Family Mediation (Ministry of Justice 2024)