Vardags Family Law Essay competition 2023/24 | Umar Majeed

Umar Majeed - University of Warwick

Financial Empathy: Private Remedies for Navigating Divorce Challenges

Introductory Remarks:

This essay will consider the necessity of “financial empathy” within family law cases, what this means for the law and how there are certain disparities and gaps in equity found in our current legal system. The fundamental tenant on which society is grounded upon is undoubtedly the family: the innate Institution which acts as an imminent necessity; illustrated as far as our trace of humanity can go. Marriage, or what was previously described as “holy patrimony” is a concept which has undergone centuries of transformation; having no fixed meaning or place in society, yet always evoking centrality within our families. However, this is a concept which the law has taken into its own hand, as to what some see as an imposing intervention into what should be a private affair of the Home. What right does the State have in governing and dictating the lives of its citizens, in what ostensibly seems contrary to the epicentral concept of a liberal democratic society: the Rule Of Law?

Yet, this essay will not address this question, with the preconceived notion that marriages often fail, with approximately 113,505 divorces in 2023. Whilst the statistics are decreasing they still illustrate a significant number of citizens who will go through marriage and come through the other end. Rather, the law has a variety of concessions that are in place to simplify divorce proceedings for everyday citizens and the purpose of this paper is to highlight the underlying factors of family law divorce proceedings, primarily regarding private financial remedies. This will then consider: how the private sector can clash with the public sector, the subsequent policy considerations that are taken by the Courts when ascertaining judgements and the general equity principle. The second part of this discussion will surround the concept of divorce in an economic migrant culture, namely the South Asian Muslim Community, the taboos that are surrounding the very word “divorce” and the correlation of this and disparities found between Islamic marriages and those registered under UK law and how the law could help to resolve such a predominant issue in some economic migrant communities. A possible solution will entail the replication of the methodology of private financial remedy claims and how this can be used to provide stability for women and children brought up in, what are often depicted as, broken families due to the divorce of the parents.

What are private financial remedies?

The word “remedy” derives from ancient Hellenistic roots, with its Latin genealogy being remedium, meaning a cure or a remedy. Thus, it makes logical sense for a primary remedy to be referring to children or those that can provide truly meaningful spiritual remedy, yet instead it is often used in our hedonistic society to refer to monetary amenities. This is in addition to the fact that nearly half of all divorces involve children under 16, thus the children themselves act as a very crucial “remedy” in cases. Moreover, the fact that they are private means that, unlike other areas of the law, they are hidden from the eyes of the public, to maintain a sense of confidentiality for the parties, in particular for those who have children and those who have large assets and are well known in the public sphere, who wish to keep their private lives private. Yet, this is undergoing a rather peculiar change as will be mentioned in this essay.

Part One: How private financial remedies are pertinent to divorces: Equity Considerations:

Divorce is not an exclusively “upper class” concept, or an area of law that merely affects those who have violated the law, namely criminal law, nor those who are involved in large corporate assets and enterprises, like commercial law. Rather, it deals with all facets of society, with the concept of divorce affecting all married couples to different extents. Thus, the question arises as to why only “very few divorces are actually litigated”?

Why are few divorces litigated?

The first reason that very few divorces are litigated is due to the post LASPO reforms which meant that a lot of funding was cut from legal aid, and which also meant that those parties that could not afford to get lawyers needed to first access mediation and after ADR they may then qualify for legal aid if they meet the threshold criteria. This means that they will not get the opportunity to access a court of law, unless they first go through a process which may result in a lesser form of justice.

This is for no other reason than the fact that the parties lack the financial means to access such litigation, illustrating a fine disparity within our legal system which means that justice will be served based on the monetary value of your assets and essentially, one’s Net Worth. Through analogous imagery, this insinuates that a couple who are attempting to get divorce proceedings and custody over their young children, will not be treated with such meticulousness in comparison to a couple who produce assets which exceed millions of pounds. Where is the financial empathy?

Conversely, it may be argued that this is not necessarily a bad thing. Even though there may be an ostensible inequity, there are reasons and policy considerations for this. Firstly, mediation and other forms of ADR have many successes and as systems of resolve, save the Family Courts from much case backlog. This means that such a methodology applied by the Courts is intentional in order to streamline the cases, from those which can be resolved in a simple manner in comparison to those cases that are complex in nature and require expert analysis to be resolved in a just and fair manner.

Additionally, the larger the cases are, the more media coverage and public interest there is. Whilst this was not previously a problem, the recent Pilot Scheme which began last year in Leeds, Carlisle and Cardiff was evident to the opposite. This Scheme allowed “accredited journalists and legal bloggers” to report on cases as they unfold, as they would do in the Criminal Courts. This is demonstrative of the pressures that the Courts are facing from the public and media bodies to create more “transparency” in the Family Courts, to the detriment of those parties who are going through such an intimate ordeal.

What now?

Whilst it may be argued that this situation will not be escalated and the Courts will revoke its support for what seems like public intrusion, it was announced that on the 29th January of 2024, “the Pilot will be extending to 16 courts across the country”, as reported by the President of the Family Division Sir Andrew McFarlane, who stated that “extending the reporting pilot to family courts across the country is a huge step in the judiciary’s ongoing work to increase transparency”.

Thus, irrespective of this ostensible inequity, both large profile cases and smaller cases have different issues that they must deal with regarding private financial claims for divorces. Essentially, both classes have a different strand of what can be described as “financial empathy”.

Solutions:

Regarding inequity, a possible solution can be found from other jurisdictions. For instance, under Californian jurisdiction, the divorce is complete within 6 months of the paperwork being completed.¹³ Additionally, the paperwork in and of itself are “relatively simple and designed for couples who do not have lawyers”. Thus, even though our jurisdiction is attempting to make a simpler system for paperwork, as demonstrated through the N1 forms, it must be argued that they must be made more common for the layman to understand without need of a lawyer. Such a system will allow further streamlining of cases, thus in situations where there is need for more consideration than the 15 factors that judges consider, there can be more focus on providing a solution that seems the most fair in the spirit of the Rule of Law.

In regards to the Pilot, after consulting a number of family law barristers, they were unanimous in stating that such a methodology seems out of place, as they are used to the confidentiality of their clients, with some even concerned about the dire repercussions such measures may have on family law cases; with such an approach being at odds with the ratio legis of the clean break provisions, which have led to contentions like what have been described as “meal tickets for life”. The law must recognise this clear policy contradiction and respect the autonomy of parties, thus preserving the status quo of family law courts as institutions of confidentiality, with very little need of “transparency” in what comprises the private lives of individuals.

Part 2: Financial Empathy in the eyes of an Economic Migrant Community

The second element of this discussion will be analysing the nature of financial empathy through the paradigm of an economic migrant group, namely the South Asian community. The prime focus on this discussion will be surrounding a cultural disparity, taboo surrounding divorce and how, through an Islamic paradigm, many migrants lack knowledge surrounding registering their marriages according to UK registration, only having an islamic marriage, also known as a “Nikkah”.

Relevance of this paradigm:

There is a gap of study in this topic of academia,¹⁶ regarding how the law can be seen from different perspectives of diversity, which in some instances results in a culture clash between our constitutional law and the laws that migrant communities may be accustomed to. For instance, many such communities have subconscious taboo surrounding marriage, in particular for the women often resulting in disproportionate results for the women of the relationship in comparison to the men. This is not only in relation to financial assets, but may even go so far as to extend their relations with the wider community.

How can the Law help to address such Taboo?

One solution to this issue is for the law to create more accessible routes to divorce, which can occur through a variety of means. For instance, mediation in which both parties feel comfortable to discuss their issues and interpreters at hand for those for whom English is not their primary language. To do so will permit more familiarisation with the law; thus to remove certain aspects of formality from the law paves the way for better communal understanding and allows parties to approach the law to finalise divorce proceedings. Alternatively, or perhaps to further accommodate for such an approach, the diversity of the judiciary should be considered, with around 6% of judges as ethnic minorities. To do so would allow for parties from such backgrounds to be truly understood by a judge who has had a similar set of life experiences as to those who are bringing the case.

UK Registered Law V Nikkah Marriages

The difference between parties registering their marriage under UK law and under Islamic Law can be seen as the epitome of a “cultural clash”, as described previously. This stems primarily from a lack of knowledge regarding the importance of registering a marriage under the UK law, with some parties even believing that their islamic marriage is valid under UK law because they completed paperwork registering it as a Nikkah. After consulting a renowned family law barrister whose experience has permitted for a speciality in understanding the reasons for such a disparity, I realised the underlying factors which play a part.

One of the most important factors is to reverse an apathetic view from couples who are married under islamic law but choose not to get their matrimonial relationship registered under UK law, which can only be done by illustrating the benefits of a UK registered marriage, as the “financial remedies available are so much broader… people simply do not realise the importance of registering their marriage in case anything goes sour”. For instance, if parties were to attempt to get a divorce whilst not legally being married, their financial remedies are significantly limited. In fact, the primary recourse is under a cohabitee claim, which is limited to two statutes, namely: Schedule 1 of the Children Act 1989 and under the Trust of Land and Employment of Trustees Act, with the former being pertinent in situations which involve children and the latter in offering joint property rights.

This extreme hindrance is a clear exemplification as to why parties should get their Nikkahs registered under the UK Registry, which is intentionally a very simple process in order to create accessibility for those who may find it difficult to navigate around courts and paperwork.

Solution:

The solution to this problem is rather simple: education and awareness. In order to avoid complex points of law arising which can result in complete reform, perhaps even unnecessary change, under family law, due to a lack of precedence, as demonstrated in Owens v Owens,  the Courts must accommodate for raising awareness of minority communities and how they will feel approaching the law for such issues. This can be done through workshops in areas which have a high population of ethnically diverse citizens, which often correlates with a Muslim population, and a range of initiatives to ensure that such parties are aware of the benefits of getting their marital relationship affirmed by the UK Registry Office. The aim of this approach is to essentially create a telos of financial empathy for all parties who approach our family courts, to offer reassurance that we will remain true to the Rule Of Law.

Concluding Remarks:

Ultimately, the aim of this essay has been to shed light upon how an ostensible disparity within the law through the framework of equity can perhaps even have positive repercussions, illustrating how one cannot observe the law through a “black and white” approach, rather all students of the law and from the scholastic community must realise the multifaceted nature of the UK Legal Constitution. Thereafter, the second element of this essay attempted to provide further comprehension through the scope of Nikkah within an economic migrant community and how this can lead to a “cultural clash” with subsequent measures that the law can take to perhaps create further reform being inserted throughout this piece.

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Bibliography:

Textbook

From Adjudication to Administrative Case Processing, from Discretion to Rules

Journal Articles:

• Anastasia De Waal The Meaning Of Matrimony Institute for the Study of Civil Society London
• Austin Sarat & William L.F. Felstiner, Divorce Lawyers and Their Clients (1995)
• Hitchings, E. , & Miles, J. (2018). Meal tickets for life? The need for evidence-based evaluation of financial remedies law. Family Law, 48, 993-1005.
• How parents cope financially on marriage breakdown (Joseph Rowntree Foundation, 2000)
• Marsha Garrison Family Life, Family Law, and Family Justice Tying the Knot
• Reform and the future of family justice: where is the court modernisation programme heading?’ [2018] Fam Law
• Settling Up: making financial arrangements after separation (NatCen, 2002)
• Surinder Guru Divorce: obstacles and opportunities – South Asian women in Britain

Media Links:

• https://financialremediesjournal.com/content/the-origins-of-the-financial-remedies-court-an-insid ers-view-part-1.f5b82225347b4fe3b8f862547218615a.htm
• https://www.judiciary.uk/wp-content/uploads/2021/10/Report-of-the-Farquhar-Committee-Part-2- The-Financial-Remedies-Court-The-Way-Forward-September-2021.pdf
• https://gasolicitors.com/blog/the-law-commission-to-review-financial-remedy-orders/
• https://www.radionewshub.com/articles/news-updates/20881#:~:text=Last year a pilot scheme,professionals involved were not revealed
• https://www.crispandco.com/site/divorce-statistics/

Cases and Statute: