Proportionality is the name of the game

Reading my weekly family law update today, the recent case of  B v B [2013] EWHC 1232 (Fam) caught my eye.  In this case, the estranged couple had done the hard work and agreed to apply the sharing principle to their divorce settlement i.e. they agreed their assets should be divided 50/50.  However they became unstuck on how to resolve minor issues, such as how to value their yacht, and which of them would retain the Scottish castle within their 50% share.  

Granted this is not a run-of-the-mill case, but the judge dealing with it issued clear guidance to family lawyers on the issue of proportionality within family law proceedings, and for this reason it is relevant to those of us who regularly advise on divorce settlements irrespective of the size of the pot in question.

In the vast majority of divorce settlements, an asset worth half a million pounds (the estimated value of the yacht) is significant.  But in so-called ‘big money’ cases as with B v B, where the overall assets were judged to be worth almost £40m, the value of this particular asset represented less than 1% of the overall pot to be distributed.

In his judgment, Coleridge J made it clear that the courts would be less and less inclined to allow parties to spend money, and importantly court time, debating issues which would make little difference to the material outcome of the case.  In future, parties should bundle up ‘lesser assets’ and agree an overall value for them, failing which the court will apply the judgment of Solomon and divide them in a ‘rough and ready’ way.

The very wealthy will always be able to afford to employ their legal advisers to pursue such issues, but the clear message in these times of austerity within the public sector is that to do so would effectively be an abuse of the family justice system.  Family law solicitors beware: this is a clear warning not to allow clients to focus on minor issues unlikely to affect the outcome of the case, big or small.

This approach has been endorsed by the President of the Family Division, Mr Justice Munby.  Having previously appeared in front of the President, I for one would not relish testing the court on the issue of proportionality.

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