Tony Scott imagined that going to law to resolve a row about money with his ex-wife would be an exercise in rationality and dispassionate analysis. He was sorely disappointed.
Fallen among Lawyers
When Parliament introduced no-fault divorce in 1973, it intended to set up a humane mechanism to help couples draw a line under a failed marriage and get on with their lives. The principle, rightly, was that blame mattered less than practicalities, the past less than the future.
In practice, however, divorce law has become a nightmare. Family-court decisions are so arbitrary that even specialist lawyers can’t predict or understand them. Court procedures are clumsy. Far from encouraging compromise and rationality, the legal process tends to fuel resentment and hostility.
As things stand, divorce lawyers can make a good living, and family-law judges can impose their prejudices on other people’s lives. Husbands and wives are left to pay – and to feel that they have fallen among thieves.
Given the scale of divorce in Britain, it won’t do.
If all that sounds angry, it’s because I am. I’ve just emerged from a nine-month legal row about ending the divorce-ordered maintenance I paid my ex-wife. As it happens, I was successful. I continue to support my children, and my ex-wife now supports herself. The final agreement was reached out of court, a couple of weeks short of a scheduled three-day hearing that would have cost my ex-wife and me a total of perhaps £35,000 in legal fees.
So my anger has nothing to do with the content of my case. It’s about what we both went through. Given the UK’s divorce rate, it’s also about the damage the law is doing to more than half the families in Britain.
Throughout the legal manoeuvrings and through all but one of half-a-dozen court appearances, I represented myself because I could not easily afford a lawyer. Another reason for representing myself is because I felt I’d not been well served at the time of my divorce and thought I could do better on my own.
What I found was alarming.
The word arbitrary barely begins to approach the unpredictability of family law, even in the view of the professionals who work with it every day.
One divorce barrister (understandably he doesn’t want to be identified by name) said: ‘Some judges will always get off the fence and adopt an extreme position on one side or the other. Some will always split the difference. Some hate all men. And some will do almost anything to stop a woman crying in their court; so the solicitors, knowing that, can get almost anything by briefing their clients to reach for a hanky.’
Another divorce practitioner – a senior solicitor – was even more scathing. ‘The decisions in a case depend completely on which judge you get, and how he or she happens to be feeling that day. It’s unpredictable and irrational – a lottery which I can’t begin to defend. And frankly some of the judges are barking mad.’
In my own case, one judge criticised me in court because ‘you’ve given a share of your home to your girlfriend’. The judge seemed unaware (or didn’t care) that the gift was irrelevant to the point at issue – that was whether she should rubber-stamp an out-of-court agreement that she had no power to change. The judge also remained entirely unapologetic when I pointed out that the woman she was calling my girlfriend had been my wife for over a year.
As to inefficiency, the list is almost endless. I never saw the same judge twice, despite all the hearings and despite a growing pile of paperwork to do with the case. So it was perhaps hardly surprising that the judges appeared to understand only the outlines of the issues – or that at several hearings they seemed more eager to keep to their timetable than to listen to either side.
Perhaps the most frustrating part of my own case was when my ex-wife and her solicitor froze my business bank account right at the turn of the tax year – leaving me unable to pay VAT, National Insurance or even my phone bill.
It took six days for the freeze to be considered in court – and two hours and £2500 in legal fees for the judge to recognise that the freezing was simply a negotiating ploy that should be ended, in the judge’s phrase,"at once". It then took 14 more days, four phone calls (to polite but helpless court staff), and a letter to the judge before the order reached the bank so that I could use my account again. As I complained in my letter to the judge: ‘Justice delayed is justice denied.’
There is a wider issue here, too. The ponderous pace of legal action imposes huge extra strain on couples – and adds invisible costs in diverted energy and lost working time. One might understand the need for a long series of hearings if millions were at stake. But nine months to resolve in my case a row about £10,000 a year?
Often the judges seemed more ready to put off a decision and set up yet another hearing – regardless of its economic cost and the legal fees involved – than to take the risk of urging either or both sides to start talking sense to each other.
Worst of all is the way the law pushes couples farther apart – even though Parliament clearly intended to encourage mediation and compromise. The trouble seems to lie in the trial-by-combat tradition of English law – two sides arguing things out in front of an impassive judge – and the ability of judges to take the easy way out on any dispute by splitting the difference.
If one side adopts a modest position or makes a reasonable claim, while the other side adopts an extreme position, any splitting of the difference favours the extremist and penalises those who compromise. So both sides have a financial incentive – throughout negotiations and in all court hearings – to adopt the most extreme positions they can. They lose nothing by doing it, and they may add to the pressure on the other side.
Lawyers, of course, are usually happy to go along with this because angry couples make for longer cases and bigger fees. The judges don’t mind because they have more opportunities to pontificate. But it does nothing for the couples, any children they have, or the country.
Rather it ensures that the two sides end up so far apart that, whichever way the judge decides, one or both will resent the result. That serves to extend and deepen the pain and damage already caused by the divorce. It thus contributes in many, perhaps most, divorce cases to lingering tension, poisonous resentment and even violence.
My own admittedly partial experience of the divorce courts in action suggests that three changes might help:
1. Allow each side to reject one judge without cause – rather as a barrister can object to some jurors in a criminal trial – so as to guard against the risk of bias. But, that right apart, have each case dealt with by a single judge throughout.
That should save vast amounts of reading-in time for the judges, limit the risk of them making silly decisions out of ignorance of the facts (and thus preserve them from bringing the law into disrepute), and speed up the courts’ work hugely.
2. Insist that judges short-circuit the delaying tactics that can drag a dispute out for months or years.
Long before any family-law case comes to trial, both sides go through a ‘discovery’ process, in which they lay out details of their finances and answer each other’s questions about them. But the judges I saw were mostly unwilling to put an end to foot-dragging or evasiveness.
In my own case, for example, it was not until the fourth hearing that any judge was willing to say to my ex-wife: ‘You must answer these questions yourself (not in your solicitor’s name) and you must answer the questions in full.’ And even then, when the foot-dragging continued, the next judge did nothing to end it.
If judges penalised time-wasting firmly and early – by, say, ordering a sum to be deducted from any final settlement – couples would be more likely to reveal their assets quickly. Then any judge could outline what he or she saw as the shape of a reasonable settlement – and order both sides to try for a deal along those lines in one of the meeting rooms that litter courthouse corridors. Within an hour, the two sides could either agree, invite the judge to arbitrate, or insist on their day in court.
The point is, though, that they’d reach this stage in two hearings rather than five or more.
3. Adopt a mechanism known as pendulum arbitration. Sometimes used in industrial-relations disputes, pendulum arbitration removes a judge’s power to split the difference. Instead the judge has to choose one side’s position or the other in its entirety.
That single change would at a stroke end much of the present uncertainty in divorce law.
It also removes a couple’s incentive to be unreasonable. It forces both to adopt the most reasonable positions they can live with – for fear that the judge will otherwise choose against them. That in turn shrinks the gap between them and thus could help to limit the resentment that husband and wife often feel at the end of a case.
These simple changes would, I believe, radically reduce the human cost of divorce – especially the drawn-out strain it generates for both sides, for children, and for any future relationships.
The changes would also help judges by cutting their workload. And they might help us all take a more charitable view of lawyers than we presently do, and reduce the contempt and fear with which many regard the divorce courts.
When people see going to court as a cross between a lottery and a mugging, they’re not the only victims.
The rule of law gets tarnished, too. And democracy is the weaker for it.
Tony Scott, a former Sunday Times journalist, is a management consultant.