Three cheers for Baroness Shackleton ‘Reform of MCA 1973 is urgently needed’.
I was delighted to hear Baroness Fiona Shackleton, that doyenne of family litigation under the MCA, saying this on Radio 4’s PM Programme on 20 March 2023:
“The reality is that certainty stops litigation in a way that uncertainty encourages it. The law is too uncertain as it stands today, 50 years down the line. That’s the problem. It needs urgent action. Not a Law Commission like the pre-nups, which still sits on the stocks not enshrined in law. It needs to be enacted, and it’s urgent.”
This crisply encapsulates a problem horribly familiar to family mediators and divorcing couples. The law is uncertain. Lawyers therefore have space to take very different views about the same case. Too often, couples who are working their way to a reasonably peaceful deal in mediation come to a juddering halt because one solicitor says X and the other solicitor says Y, and the law allows them both to say that their view is a possible outcome, even though X and Y are simply miles apart.
Sure enough, this cropped up for me in a supervision with a mediator this week, where the same familiar story was told.
The case involved a couple in their 30s, a 10 year marriage, and two children under 8. He earns around £100,000 net; her income since the children arrived is around £10,000. They own a house with equity of £600,000 and £300,000 mortgage. Not much in the way of savings or pension. He has moved out and is living with a new partner. She remains based in the home.
Notwithstanding the potential for emotional upset, these two are determined to end things well between them. They see the long future ahead as parents and want the best for their children. They’ve self-referred to mediation. Both say at the outset ‘We really want to avoid conflict; we just want to sort this out sensibly’.
They work well with the mediator. Arrangements for the children are agreed, Form Es are exchanged and a constructive discussion about financial disclosure takes place. The mediation moves into the next stage, to look at housing options for them. He doesn’t want to disrupt her or the children and is not rushing for his stake in the house; they talk about a Mesher arrangement as a possible option.
Quite properly, the mediator explains that they may wish to get independent legal advice at this point. We want our clients to engage with confidence, and supportive legal advice in the background should be helpful.
I say ‘should’ be helpful, because in any half decent society it would be helpful. Sadly, not so under the current law in England and Wales. The wide-reaching judicial discretion under the MCA means that they inevitably get different legal advice and this sets them apart.
In this case, she is told it’s in her interests to sell the house, that she’d get 80% of the equity. ‘My solicitor told me categorically that I’d get 80%’. He is outraged and thinks she’s consulted one of those nightmare solicitors who wants ‘to take him to the cleaners’. His solicitor (no doubt very sensible, in his mind) has told him that it would be a 50:50 split of the equity. They also had differing advice on the level and term of spousal maintenance. Both have paid good money for their legal advice; quite properly both want to trust in their own solicitor.
If you, the reader, are now immediately analysing the two sets of advice to work out ‘which is right’ then STOP! The point is not which lawyer is right, the point is that this system is a nonsense. It creates havoc for decent people who want to separate on decent terms, and who want to put their children’s welfare first. As becomes evident at the next mediation appointment, the stress caused by their different advice is spilling out into bad feelings between them; the easy flow of child arrangements is becoming fractious.
Where does this leave the solicitors? They’ve done their duty to their clients, advising in their best interests. They owe no duty to the two clients together as parents, nor to the children in the family. If they’ve been bold in their advice, the unpredictability of any judicial outcome means they’d be safe from any successful negligence claim. In practice, this leaves them unaccountable. They will promote ‘Dispute Resolution’ options, without perhaps seeing the irony of attributing a ‘dispute’ to a couple who had none before they were consulted.
Where does this leave the clients? Confused. Stressed. Annoyed with the other’s solicitor and with each other. Unsure. Their initial goal of sorting this out sensibly is disappearing into the distance. This is all going to be more difficult, more costly and more acrimonious than they’d wanted.
And the children? Nobody could fail to see the likely ripple effect out to them. Hopefully their parents will get the help they need and come to a resolution before things unravel any further.
So we come back to the mediator. The mediator has seen this scenario more times than they’ve had cooked breakfasts. It is a continual and unwelcome dynamic in any finance work with couples who divorce. The mediator is similarly annoyed and disheartened. Not with the clients, nor (necessarily) with their solicitors. For the umpteenth time, an antiquated law which is not fit for purpose and the unpredictability of judicial outcomes has scuppered another family’s good intents to be civilised and decent. The mediator will work hard at reframing, reality-testing and other good mediator skills, to restore the child-focussed goal the clients both expressed at the outset. The mediator may still get them over the line to a settlement, and it will be marked in the data sets as a tick, a financial order made by consent. But the wretched law will have taken its toll, impacting the family narrative for years into the future.
The mediator will try to help the clients see that the people at fault here are not the solicitors; it is the successive governments who don’t listen and don’t care about the harm done to many millions of families over the years by the MCA judicial discretion.
So three cheers to Baroness Fiona Shackleton and to any other Parliamentarians who are taking up this cause.
