What is fairness on the battlefield of Divorce & Finance?
2015 is the year of the General Election and no doubt we all will see lively debate about accountability, fairness and on the merits of the Mansion tax. But what does fairness mean? What does it mean when you separate and try to split your assets? Particularly when emotions are running high. Victor Hugo said, “Being good is easy, what is difficult is being just.” But does justice equal fairness?
Is everything allowed?
This very difficult topic was addressed by an extremely experienced High Court Judge in JL v SL [2015] EWHC 360 (Fam) (18 February 2015) . In his latest Judgement Mostyn J. summarised the case law and the position around fairness.
He said at [11] “It is a truism that the ultimate judicial objective in an ancillary relief case is to achieve a “fair” outcome. But, in such a case, what is fairness?”
White and White
In White v White [2001] 1 AC 596, [2000] 2 FLR 981 at para 1 Lord Nicholls stated:
“Features which are important when assessing fairness differ in each case. And, sometimes, different minds can reach different conclusions on what fairness requires. Then fairness, like beauty, lies in the eye of the beholder.”
Miller v Miller; McFarlane v McFarlane
In Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618, [2006] 2 WLR 1283, [2006] 1 FLR 1186 at para 4 Lord Nicholls stated:
“Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. It is not surprising therefore that in the present context there can be different views on the requirements of fairness in any particular case.”
R v Secretary of State for the Home Department, ex parte Doody
In a totally different context in R v Secretary of State for the Home Department, ex parte Doody [1993] UKHL 8, [1994] 1 AC 531 Lord Mustill stated:
“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that: … (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects…” Mostyn J concluded at [15] that “therefore at its heart a judgment about what is fair is instinctive and intuitive.”
Lord Nicholls in Miller
However, as Lord Nicholls stated in Miller at para 6:
“But an important aspect of fairness is that like cases should be treated alike. So, perforce, if there is to be an acceptable degree of consistency of decision from one case to the next, the courts must themselves articulate, if only in the broadest fashion, what are the applicable if unspoken principles guiding the court’s approach.”
The down under view
Deane J put it in a similar way in the High Court of Australia in Mallett v Mallett (1984) 156 CLR 605 at p 641:
“It is plainly important that, comfortably with the ideal of justice in the individual case, there be general consistency from one case to another of underlying notions of what is just and appropriate in particular circumstances. Otherwise the law would, in truth, be but the “lawless science” of “a codeless myriad of precedent” and “a wilderness of single instances” of which Lord Tennyson wrote in his poem “Aylmers Field”.”
What did King Lear say?
In the tragedy of King Lear, William Shakespeare draws our support for his villains as well as his heroes, asking us to explore what drives someone to action. King Lear suggests that people are given what they deserve, that there is justice in the end result and the way things turn out are always fitting. “Does human nature make us care only for ourselves, or for others? Our natural eyes may not give us the best answer”.
Conclusion
We all know life is not fair and sometimes you get a splinter by sliding down a rainbow, like Terri Guillemets says. However let’s make all sure that the splinters are rare and small and heal quickly. Live so that when your children think of fairness, caring, and integrity, they think of you.
Contact us
If you would like more information on the issues raised by this post or advice on divorce and finances, please call us at Paradigm Family Law on 0845 6020422 or email us at [email protected] to speak to our family law specialist solicitors and arrange a free initial consultation.
