Family Finance Inner Temple Student Weekend at Crewe Hall

Over the weekend of 10–12 February 2023 some 56 students of the Inn and a posse of its judges, silks and barristers descended on Crewe Hall, a large, imposing Jacobean mansion just outside Crewe in Cheshire which is now a hotel and spa, to learn about and discuss current issues in family finance law at a weekend organised by Samantha Hillas KC and Paul Infield.

Financial relief on divorce is still guided by the Matrimonial Causes Act 1973, a statute which was passed exactly 50 years ago. It defines what courts can and cannot do but it provides little guidance on what result they should attempt to achieve. As every case falls to be decided on its own individual facts, it can be difficult to identify general guiding principles from the case law which will assist the parties to a divorce in accurately predicting how a court will deal with their particular case. The House of Lords endeavoured to provide some guidance by way of broad statements of principle in the landmark cases of White v White and Miller v Miller; McFarlane v McFarlane, but always under the shadow of the legislation’s direction to the court to consider “all the circumstances of the case”.

Although the decisions of the House of Lords in White and Miller/McFarlane sought to provide a greater degree of coherence to the driving principles the courts should apply, the judicial discretion exercised in financial remedy proceedings remains extremely broad and, in practice, often difficult to predict with any precision. There have been judicial cries for a more predictable system, but any system which limits judicial discretion too far is likely to result in complaints of injustice in ‘hard cases’. The next few years are likely to see considerable debate, both inside and outside the courts, as to how the current system should develop and whether it requires wholesale legislative reform. The tension between ‘predictability’ and ‘fairness’ is likely to be at the heart of this debate.

Over the last 30 years family finance law has expanded massively from a by-water of divorce law into a speciality of its own, and its cases are regularly reported in the press. It is often controversial, with former spouses often complaining that the ‘system’ is unfair, that it gives too much to the other party, that it gives too much discretion to judges, and that it costs too much.

Over the last 30 years family finance law has expanded massively from a by-water of divorce law into a speciality of its own, and its cases are regularly reported in the press.

The problem of dividing one family cake into two has always been an exercise that would have strained even Solomon’s ingenuity, but it is often complicated by issues such as children being educated at private school, the division of pensions (some of which may be defined benefit schemes whilst others are defined contributions ones), the earning capacity of women who have given up or interrupted careers to look after children, and hidden or allegedly hidden assets.

What results should financial relief on divorce attempt to achieve? And how should it carry out that exercise? Is the current system fair or ‘fit for purpose’? Those were some of the issues that we attempted to cover during this weekend.

The weekend began on the Friday evening with a talk by Mr Justice MacDonald (a welcome regular at these events) who gave us a tour d’horizon of some of the issues that affect this area of law.

On the Saturday morning we had a panel of experts in this area – Mr Justice MacDonald, Rhys Taylor of 36 Family, Stephanie Coker of 5 St Andrews Hill, and Ros Bever, a partner at Irwin Mitchell and the Head of its Family Law Team in Manchester – discussing current issues raised in questions both from me in the chair and from students. We dealt with questions such as whether the financial remedy regime in the Matrimonial Causes Act 1973 is fit for purpose; whether financial relief proceedings are biased against men; whether pension sharing orders work well; the philosophy behind Part III of the Matrimonial and Family Proceedings Act 1984, and whether it works satisfactorily in relation to foreign jurisdictions; whether it is right that animals are merely treated as chattels in family finance proceedings; the differences between the way in which the law treats married and unmarried people; whether our current laws for cohabitants are fair and practical and, if not, how they should be changed; whether the Family Procedure Rules are fit for purpose and, if not, how they should be changed; the delays in the family courts; and the difficulties of dealing with Litigants in Person in the family courts. It proved to be a very lively session with some vigorous discussion and some interesting disputes.

The students then spent some time preparing for the Advocacy Exercises after which they had a masterclass in advocacy from Ashley Lord of Spire Barristers and Master Malek Wan Daud of Garden Court Chambers, using the same case that the students were to use to in their Advocacy Exercises on the Sunday. As always, it was both amusing and instructive, with District Judge Nat Cuddy, in particular, showing us that comedy performances are not the monopoly of actors. There followed a session in which the students wrestled with some Ethics Exercises in their groups.

After dinner there was the much-famed quiz, a devilish test of knowledge that has become something of a tradition at these weekends. Assisted by liberal amounts of alcohol and a quizmaster who made Pointless look like University Challenge, the participants struggled through several rounds of mind-bending questions at the end of which one of the tables won. I forget which.

The Sunday morning was marked by several bleary-eyed, pale students (and a couple of group leaders) trying to remember the name of the capital of the Ivory Coast. But they were soon thoroughly awoken by the Advocacy Exercises for which they had spent several hours preparing the previous day. The case was a financial dispute between the couple whose disputatious divorce has long entertained The Inner Temple students at these weekends: James William Bond and Jane Bond (now Moneypenny). The main issues concerned whether the wife was now cohabiting with Mr Auric Goldfinger (an issue on which the private investigator, Ernst Stavro Blofeld gave evidence) and whether the husband had underdeclared his earnings from his job as a car salesman. All the students were able to perform some advocacy role – either a speech, an examination in chief, or a cross-examination – and the judges then gave a short judgment followed by some pointers for improvement of the advocacy.

Students often ignore our invitations to give feedback on these weekends and on Qualifying Sessions in general. But this weekend was different. We had an unusually large amount of feedback, almost all of which was positive. The weekend was described as “tremendously helpful and well organised” and “a very productive weekend”, and students said that they “learned a great deal”. As generally happens at these weekends, the mixture of hard-edged discussion about real legal issues led by judges and practitioners, the opportunity to socialise with judges and members of the bar, and the informality of the event, was very well received by the students.

Paul Infield

36 Family

Master of the Bench

Samantha Hillas KC

St Johns Buildings Barristers Chambers

Master of the Bench