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‘Cookie cutter’ divorce formula not the answer, says lawyer

A new system of Canadian-style ‘cookie cutter’ justice for divorce cases in England will undermine the strengths of the existing model, believes a London-based lawyer.

10 December 2012

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“A one-size-fits-all approach creates a big risk that fairness in individual cases won’t be maintained,” said Jonathan West, head of family and matrimonial at City law firm Prolegal. “The great strength of the current system in England and Wales is that experts with great expertise look at the individual circumstances of cases to bring about a fair outcome.

“Asking high-quality legal counsel and decision-makers to look at cases in a bespoke way may cost more than the ‘cookie-cutter’ model, but if we’re committed to maintaining the highest standards of justice and fairness in our system, there’s no substitute.”

West’s comments are a response to the reform of divorce law that is currently being considered in England and Wales by government law advisers. Under the proposed changes, the sums that separating spouses receive would be based on a mathematical formula, under which payouts would depend on factors such as the length of a marriage and number of children.

The aim is to ensure greater consistency in judges’ decisions and give couples greater certainty about how much each will receive if they decide to split. The Law Commission also believes that the reforms could reduce conflict and the cost of divorce cases by making people less likely to pursue unrealistic claims.

Lord Justice Munby, a Court of Appeal judge, welcomed the idea. He said: “If criminal practitioners can live with it and if personal injury practitioners can live with it, why can’t we?”

However, critics of the system, which was introduced in Canada in 2008, claim that it leads to ‘cookie cutter’ justice in which the size of divorce settlements becomes too fixed, rather than decided on the merits of each individual case.

“There’s nothing wrong with a desire to curb legal costs and improve consistency, but it’s too simplistic to think this can be done by adopting a ‘cookie-cutter’ formula for divorce settlements,” said West.

“This isn’t to say there is no need of reform in the current system. Joint life orders, in which one spouse is often required to pay maintenance to the other for a period significantly longer than the marriage, are a particularly pressing problem.

“Too often, the current systems discourages the poorer spouse from remarrying because doing so would jeopardise their income. While nobody wants poorer spouses to run out of money, it’s important these orders are made with a stronger assessment of what each party thought they were taking on at the beginning of the marriage and that they encourage both parties to move on with their lives,” he said.

“Cookie-cutting in all areas may be a step too far, but there is certainly scope for government to consider clear guidelines about what constitutes a fair amount of maintenance so people have certainty about what they are entitled to from the outset,” continued West.

I would draw a distinction between maintenance and capital provision, leaving discretion in the capital arena to ensure that fairness is achieved – perhaps cookie-cutter lite!”

The commission is also preparing a report on whether prenuptial agreements struck before marriage should become fully recognised in law.

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