Discretion must remain at the heart of financial remedies reform

Date: 30 Jun 2023

Karen Jones

Article idea from expert HNW family lawyer.

Katie will begin by discussing Mr Justice Mostyn’s reputation for a formulaic and precise approach to cases, noting how many in the world of family law disagree with this method as rigid, uniform rules can often lead to unfair results for one of the parties.

Katie will underline that the quest for achieving fairness has always been the holy grail for all family lawyers and family courts. To achieve true fairness, an element of discretion will always need to be present to ensure a party’s ‘need’ does not fall foul of an arbitrary approach. Katie will argue that is the reason why Mostyn has faced such stiff opposition, as this is always the argument against reform in divorce law.

Katie will concede that the amount of costs in some “middle money” cases, as Mostyn argues, are no longer proportionate, because there is too much scope for argument.

Katie will argue that while some basic principles and guidelines would be beneficial in most cases, discretion should still represent the modus operandi of financial remedies. She will conclude by offering a reasoned way forward: a tightening up of some principles to limit costs and widen access to justice, while retaining the safety net of discretion.

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