Appropriate provision on divorce: needs must
This article was first published in Solicitors Journal on 7 June 2017 and is reproduced by kind permission.
While the fluid nature of financial proceedings on divorce can be frustrating for clients, it is preferable to a more prescriptive approach, argues Pippa Allsop.
The award ‘may have been generous, and other judges may have awarded less, but [it was] clearly within the legitimate bracket’. So stated Mr Justice Mostyn in his judgment dismissing a husband’s appeal in FF v KF  EWHC 1093 (Fam). And so he perfectly summarised the position that there is no standard approach to determining appropriate provision in financial proceedings on divorce.
In this case, the parties’ relationship ‘stretched over nine years punctuated by a separation of three years’. They were married for two of those years, after living together for six months. The timeline of the relationship in itself is interesting as it touches upon the subject of pre-marriage cohabitation and how this is dealt with in proceedings for financial orders.
Historically, mainly due to the nature of public opinion in relation to couples living with one another outside of wedlock, the duration of the marriage in the context of financial proceedings on divorce was taken to be from the time of marriage to the time of its breakdown. However, in GW v RW  EWHC 611 (Fam), Mostyn stated that ‘where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently’. In FF v KF, he commented that the accepted characterisation of the parties’ marriage as being a ‘short’ one was not helpful to him in determining the appeal. It was, he stated ‘always going to be from first to last a needs case’.
Essentially, both parties accepted that the wife should receive a lump sum which would (1) be able to discharge her debts, (2) purchase a property, and (3) leave her with enough left over to ‘furnish an income producing fund’. It was the level of this lump sum which was ultimately in dispute. At first instance, the judge had determined that £4.25m would be appropriate. The husband appealed against this judgment.
Mostyn J aptly surmised that ‘so far as the “needs” principle is concerned there is an almost unbounded discretion… The main drivers in the discretionary exercise are the scale of the payer’s wealth, the length of the marriage, the applicant’s age and health, and the standard of living.’ In this case, the length of the marriage had to be balanced against the ‘serious psychological harm’ which the wife had suffered ‘as a result of the married life and its breakdown’. It was accepted that this would have an impact on her future earning capacity, which would in turn affect the level of the income producing fund she should receive.
This case perfectly illustrates some of the most difficult concepts for clients to grasp in financial proceedings, and the ones which need to be hammered home by the family practitioner at the outset in order to properly manage client expectations. The reality is that all the circumstances of the case must be considered by a judge, who may then apply their broad discretion in reaching a decision. This means that it is not always easy to provide a client with anything more than a range of possible outcomes, which can often be less than satisfactory.
Understandably, depending on the specific circumstances of each case, some clients find such concepts easier to swallow than others do. I often find that it is useful to refer to recent examples like this case in an attempt to sugar the pill. I certainly know from experience that there is comfort in knowing that someone else is in the same boat. Although, unlike in other jurisdictions, English law is much more fluid in determining an appropriate financial outcome when people divorce, this is arguably still greatly preferable to a more prescriptive approach which does not take into account all of the circumstances of each individual case.