Despite recent rulings, courts should follow model of separate family justice system, says Barbara Reeves 

Divorce and parental separation frequently give rise to difficult practical and emotional issues: where and with whom any children should live, how often those children should see their other parent and how finances should be redistributed to provide for the needs of everyone involved.

Sometimes separating couples are able to resolve these issues between themselves. When they cannot the only option left is to seek legal advice and, ultimately, engage the family justice system, generally at a time when the emotional wounds caused by a failed relationship may be still raw.

Of course there is frequently an emotional overlay in other areas of legal practice; litigation concerning say, employment, reputational issues or boundary disputes can often be highly charged. But it is still difficult to conceive of any area of private law where the emotional aspect of the underlying dispute is so prominent. For many separating couples, the absence of any clearly stated objective of the legal process on which they embark adds more heat at the expense of light.

This is why two recent judgments, which suggest family cases should be conducted like any other litigation, are disconcerting.

As any law undergraduate knows, the purpose of damages in general civil litigation is to put the parties in the position they would have been had a tort not been committed, or if a contract had been performed. No similar exposition exists for matrimonial finance cases. Instead, in the absence of a clear statutory objective, the House of Lords has concluded that the purpose of this type of litigation must be to arrive at a "fair" outcome (though with the law lords admitting fairness lies in the eye of the beholder).

Children's welfare

The position is even more opaque when it comes to determining the living and care arrangements for children. The statutory requirement that a child's welfare is to be the paramount consideration of the court requires family judges to metamorphose into King Solomon. The emotional response of any parent is entirely understandable; the very thing that they are asking for is, of course, in their child's best interests.

But while these peculiarities of family litigation are well known to specialist judges and practitioners, successive judgments of the Court of Appeal and, more recently, the Supreme Court have held that the conduct of participants in family litigation should be no different from that of any other litigants and reiterated that the relevant legal principles which have to be applied are precisely the same in the Family Division as in the other two divisions. 

Indeed, according to Lord Sumption in his speech in Petrodel v Prest: "Courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different." 

Likewise a strong Court of Appeal comprising Lord Neuberger and Lords Justices Moses and Munby ruled (in Imerman v Tchenguiz) that "there is no basis for any special rules [in the Family Division]. Many litigants in all jurisdictions are driven by their greed or other unworthy motives to lie and cheat. The rules, and the judges' application of the rules, must be robust to prevent such conduct. But what surely cannot be allowed is a system of self-help outwith the law so as to circumvent the rules."

Yet Prest involved a husband who was found to have repeatedly flouted his duty to give full frank and clear disclosure of his finances. He was in breach of many orders for disclosure; he had been repeatedly condemned for costs which he had not paid and at trial his evidence was both deceitful and shambolic. Nevertheless, and notwithstanding that he had also ignored all company law requirements when he had 'milked' his companies to provide him and his family with an extravagant lifestyle, he was able to hide behind company law in seeking to avoid his wife's financial claims.

Imerman is authority that says a husband (or wife), when faced with a financial claim, is entitled to claim privacy in relation to his personal documents even if they tend to show he has salted away the family's assets. So, rather than surreptitiously take copies of such documents to give to her solicitors, an expensive search order is needed to get the same documents.

While it's certainly possible to execute a search order on the family home (hopefully after the children have finished breakfast and gone to school) why would anyone want or need to? Of course there is only one law, but the difference between an employee stealing their employer's assets and a wife rifling through her husband's briefcase is obvious.

Spot the difference

And surely the man on number 88 bus (destination Clapham Common) would recognise a world of difference between a wife who discovers all the family's assets are held by companies solely controlled and owned by her husband and the arm's length creditors of those companies. At the very least, the arm's length creditor has had the opportunity to understand the commercial risk – not a concept wives usually need to consider.

There is general consensus that legal relationships between spouses, civil partners and cohabitants are materially different from arm's length relationships. The family justice system is being modernised to reflect this through the imminent introduction of a unified family court presided over by specialist judges.

Heretical as it may be to suggest, hammering the square peg of family disputes into the round hole of general law doesn't always lead to a fair outcome. If the legal issues that flow from relationship breakdown are so obviously unique as to require a separate justice system, why shouldn't their resolution be as well?

Barbara Reeves is a family partner at Mishcon de Reya.