A new system of Canadian style “cookie cutter” justice could be introduced in England to cut the cost of divorce cases under reforms being drawn up by government law advisers.
Under the 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 would be 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, which is studying the idea for ministers as part of a wider overhaul of divorce legislation, also believes that the reform could reduce conflict and the cost of divorce cases by making people less likely to pursue unrealistic claims.
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.
But Professor Elizabeth Cooke, who is overseeing the Law Commission’s efforts to reform divorce law and unveiled details at a meeting at London’s Inner Temple attended by some of the country’s most senior judges, said the idea could improve the way cases were resolved.
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?”
Under the system, judges would be able to vary payouts — but in most cases the new formula would set upper and lower limits for settlements. For childless couples, the length of the marriage and difference in income would determine the settlement and how long support continues after divorce. For parents, the number of children would be the key factor.
Baroness Hale, a Supreme Court judge and the country’s most senior female member of the judiciary, told the meeting that she was “really very sympathetic” towards what the Law Commission was trying to do.
The harm which acrimonious divorce battles can cause was highlighted by the £1.7 million legal bill run up by Giles Kavanagh and his former wife Anna-Marie. The pair, both lawyers from Surrey, were criticised by a judge for driving their marriage “fult tilt onto the rocks” during years of costly court disputes. Mrs Kavanagh’s barrister said it was a “sad case” in which the couple had spent almost all their assets on litigation.
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The commission is also preparing a report on whether “pre-nup” agreements struck before marriage should become fully recognised in law.
