 Hello, my name is Emma Hitchings and I'm an academic at the University of Bristol Law School. In this presentation, I'm going to talk about financial and property matters on divorce, also known as financial remedies. The findings that I'm going to draw on today were part of a Nuffield funded project conducted with Joanna Miles from the University of Cambridge. First, a bit of background about the current regime governing this area for those of you coming to the topic for the first time. Section 25 of the Matrimonial Causes Act is the key statutory section regulating the division of financial and property settlements on divorce. The Act itself vests extensive powers in the court. Section 25 subsection 2 is a broad discretionary section with a checklist of factors, the importance of which varies from case to case. However, case law which puts the flesh on the statutory criteria is dominated by big money cases and the associated issues which vex those with sufficient assets. For example, the distinction between matrimonial versus non-matrimonial property as exemplified in cases such as Mila McFarlane and Charman, special contribution as shown in cases such as Cowan and Work and Grain, Lambert, unilateral assets in cases such as Sharp and prenuptial agreements in Radmacka and Granatino. However, in this presentation, I won't be looking at these big money cases. The focus instead is on the majority of financial and property cases on divorce. As Sharon Thompson's work demonstrates and a reference to her work is at the bottom of the slide, the media also provides a distorted view of the reality of financial remedies law. Invariably these are the bigger money cases that are not representative of the majority of divorcing couples in England and Wales. For example, a recent focus for the media has been on the meal ticket for life myth of lifelong spousal periodical payments with the implication that all divorced men are doomed to live life as a cash machine according to the Sunday Times headline on the 12th of February of 2017. However, this big money case law and media reporting of the atypical case is for the vast majority of the divorcing population irrelevant and not representative of the reality. Meeting the party's needs post-divorce will be the only issue of importance and needs in this context means the need for a home and income. In this presentation, I will seek to provide some information about the reality of financial remedy cases on divorce in England and Wales for the majority of the population. Now this is relatively under-researched particularly the substance of outcomes being reached in other words what are people settling for but the first question to focus on is who are the majority. I have divided this into two categories, first the outsiders and second the everyday financial remedy cases. The former are those who remain outside the family justice system, those who do not obtain a financial remedy order upon divorce. The second category are a smaller population, those everyday needs-based cases where a final financial remedy order is obtained through the court. So the key distinction here is that outsiders do not obtain any financial order through the court whereas the everyday financial remedy cases do obtain a final order through the court. First let's look at the outsiders. Most divorcing couples get no financial order on divorce. The family court statistics report the number of financial remedy orders made compared with the number of divorces granted each year. There is often a lag between divorce being obtained and a financial remedy order being made so here in this table the 2019 data is not included as it's clearly incomplete likewise 2018 and probably 2017 are incomplete too. The earliest year on the table is 2003 after which the numbers steadily tick down until we reach 2018. Unfortunately I haven't got room on the slide to include all of the years so I've just included certain years to give a flavour of the trend. So as we can see there's a clear downward trend in proportion of divorces that have financial orders only around a third of divorces now have financial remedies ordered by the court. So what does this mean? Well it means that two-thirds of the divorcing population are therefore outside the system. This means that this population has no final order on divorce. The majority and increasing number of divorcing couples who cannot afford lawyers now take a DIY approach to managing family break-up they do it themselves. So why is it important to know about the outside of population? In Wyatt and Vince the parties did not obtain a financial remedy order through the courts at the time of their divorce in 1992. The husband subsequently became wealthy and the wife applied in 2011 for financial remedies through the court. The Supreme Court held that there is no time limit for seeking orders for financial provision or property adjustment. Lord Wilson however did emphasise that the reasons for a delay in bringing an application will require explanation. So what Wyatt highlights is that without an order finalising financial and property issues on divorce couples will not obtain the benefit of certainty in the ordering of their financial affairs. Given that the majority of the divorcing population do not pursue financial or property orders through the courts this leaves large numbers outside of the formal justice system. Also certain assets cannot be divided without a court order for example pensions. In some cases particularly in long-standing defined benefit schemes a significant proportion of the couple's wealth may be contained within one party's pension. Without a court order this will not be able to be shared fairly on divorce. Now the consequences of this are particularly severe for women. We have evidence about the effects of divorce and separation on ex-spouse's income levels notably the differential negative impact on women and children compared to men and we can refer to Hayley Fisher and Hamish Lowes research on this and I put references to them on the PowerPoint slide. Yet commentary and research to date has largely focused on family disputes formalised by the court process. This outside of justice space is a key site for new empirical research in particular examining questions such as whether outsiders are actually settling their dispute or whether any settlement is best achieved is being achieved through passivity through coercion through compliance or uncertainty. Also questions such as why do couples not formalise their separation why is it the two-thirds of the divorcing population don't get a court order and also what are the short and longer-term outcomes for parties and any children. The answer to these questions and others are unknown to both researchers and the family justice system mainly because of the difficulties in accessing this population. However the individuals experiencing outside of justice guiding legal principles such as fairness and equality may become simplified to the detriment of those who would have benefited from a more nuanced discourse. This could leave many families vulnerable to settlements based on erroneous or simplified legal myths inappropriate in that particular case. Now I explore some of these issues and questions in my 2017 child and family law courtly article which I have referenced on the slide. The second category included in my understanding of the majority are the everyday couples who have obtained a financial remedy order on divorce the one-third of the divorcing population who do obtain a financial order. This population has had some empirical research inquiry albeit limited. To seek an answer to the question what do we know about this population Joe Miles and I conducted a mixed method study funded by the Nuffield Foundation examining financial settlements on divorce. Now the data was collected from three sources first a court file survey of approximately 400 cases from four courts around England second 32 interviews conducted with solicitors and mediators situated in those four court areas and finally focus groups with first instant judges from across England which gave a broader geographical reach than the court file survey and the interviews. Now just one caveat about this was that save for the focus groups our data predates the removal of legal aid in England and Wales. So what are the parties with orders mostly made by consent actually getting? The principal area of interest in public discussion is whether parties agree an immediate clean break in other words settlements with no ongoing spousal periodical payments. There is an ongoing discourse surrounding x y's as gold diggers and periodical payments being nailed tickets for life as we saw earlier with examples of some headlines and through Sharon Thompson's research but does this reflect the reality for the majority of couples obtaining financial remedy orders? Some of the key findings from our research include the clean break culture is prevalent, that meal ticket for life periodical payments are rare and that spousal support orders are largely confined to cases involving dependent children of the family. So let's look at these findings in a little bit more detail in other words what is actually happening for the majority of everyday couples who obtain a financial remedy order on divorce. This table reports all the different types of orders found in the survey. Highlighted in red are the figures the spousal periodical payments made in just 16 percent of cases in the survey. We cannot say that our court file sample is representative of the whole jurisdiction we have just four courts which may or may not be typical. Hillary Woodward in her study of pensions found periodical payments in just 12.5 percent of her court file sample in three different courts. But if one assumes from these two studies that around 14 percent of spouses get periodical payments and that only a third of divorces get any financial order that means that less than 5 percent of divorces have spousal support payments moving between them after divorce. If we put this another way the clean break is prevalent. Also our qualitative data show clearly that client preference of both husbands and wives is a major driver of that. If couples can have a clean break they will but our data also indicate that at least some of those clean breaks may not be advisable and this is demonstrated by the following quote from a solicitor interviewee from our solicitor practitioner sample. The solicitor said what they agreed was a very good deal for him actually in my view. I did say to him that's the husband if I was acting for the wife I wouldn't be advising this. She got a clean break which with four small children and no income I thought wouldn't even get past the court and I said to him and warned him you know your danger is this isn't going to get passed. It did. She did get a significant portion of the housing capital proportion of the housing capital at front to be able to rehouse herself. I think from her position she wanted to get out of the matrimonial home and get herself a new property. I thought it the outcome worked very well for him because he the husband got the deal he wanted. The wife might not think so. The interviewer then probed further and said in a few years time the solicitor said yes said absolutely when her monies run out and she's got no income and four small children. So here although the parties wanted a clean break whether this was advisable is another matter. This table gives the detail on the types of periodical payment that were made in our court file sample. The blue columns give the data for all cases the orange columns pick out the cases in which there was at least one child of the family aged under 18 at the date of the financial order. The rows with pink labels are periodical payments. You can see from the bottom pink row there were just 22 joint lives orders in the whole sample that's 5.5% of all cases of total cases. The so-called meal ticket for life order is not frequent in fact based on this it is rare and the spousal periodical payment orders that were more prevalent and immediate clean breaks less prevalent though still more common than not were where there were children. There were only nine cases in which periodical payments were made where there were no dependent children therefore a striking finding is how spousal support was almost always confined to cases with children. So some brief conclusions. In my view financial remedies law must have a principled foundation that reflects the lived reality for everyday couples. That is necessary in any circumstances but particularly in light of the legal aid cuts which have led to increasing numbers of litigants in person within the court system and with the large numbers not formalizing their finances and property on divorce. Furthermore the continuing discourse around the bigger money reported decisions sheds no light on how the broad discretionary framework is to be used in the everyday financial remedies case. Consequently given the recent focus on the incoherence of the big money case law and the meal ticket for live discourse it is unsurprising that calls for reform have resulted in a bill initially promoted by Baroness Ruth Deitch in 2017-19 and in this parliamentary session by Baroness Shackleton in 2019-21 which would presumptively limit spousal periodical payments to a five-year maximum term and also introduce a presumption of equal shares of matrimonial assets. One of the difficulties with this bill is that it is potentially harmful to economically vulnerable individuals. Spousal support may not be common and joint lives orders may be rare in the everyday case particularly compared with the focus in both public and parliamentary debate on the atypical cases but that does not mean that the governing principle should be set in a way that effectively precludes their use. If the everyday cases tell us anything it is that financial remedies on divorce should properly acknowledge the reality experienced by many parents that performing the socially and economically valuable role of being a parent can impact significantly on one's personal economic resilience in a way that burdens that spouse in the event of divorce. Limiting couples options through this bill does not reflect the reality or needs of the everyday couple. It also leaves the majority of the divorcing population the outsiders to the family justice system still left with many questions as to what happens to them. This lack of evidence is problematic there has long been debate and recognition to the law governing post divorce finances needs overhauling. Moreover there is a very strong policy priority of encouraging private ordering of family legal disputes coupled with the abolition of legal aid for most family law matters. Without robust evidence regarding how negotiations and arraignment arrangements are managed whether made with or without legal assistance and what the consequences are for families and children there is no firm evidence base from which the legal profession and policy makers can discuss and assess what changes might be required. For more detail about these research findings a short briefing paper is available on the Nuffield Foundation website which I have put there and alternatively a longer article can be found in the Australian Journal of Family Law both references on that final PowerPoint slide. Thank you very much.