Resolution Podcast S3 Episode #6 | The Fair Shares Report | w/ Emma Hitchings, Gillian Douglas & Joanne Edwards

Talking Family Law - The Resolution Podcast

In this episode we are joined by Professor Emma Hitchings (Bristol University), Professor Emerita Gillian Douglas (Kings College, London), and Joanne Edwards (Chair of Resolution’s Family Law Reform Committee/Forsters) to discuss the Fair Shares report.

This report is the first time there is a fully representative picture of the financial arrangements families make (and in a lot of instances, don’t make) on separation and divorce, and how they arrive at those arrangements. It is essential reading for anyone practising, or interested, in this area. The full report can be found here:

https://www.bristol.ac.uk/media-library/sites/law/news/2023/Fair%20Shares%20report%20-%20final.pdf

In this episode Emma tells us that the report found that the median value of assets on divorce is £135,000. Thus, the cases that hit the headlines are not representative of most people’s experiences. The research serves to dispel a lot of myths peddled in the media about finances on divorce.

In the research the academics classified the divorcees into different types or mindsets i.e. how they viewed their marriage, and their hopes on separation. This arose from the qualitative data. We discuss how using this typology can help understanding of how divorcees reach different outcomes despite having similar circumstances. Broadly, there was:

The unequal couples – they can be the most problematic to help. There is invariably a power imbalance, and there could have been domestic abuse, including financial abuse. In these cases, it is not possible for the parties to genuinely negotiate. The effect can be that the less dominant party walks away with nothing, or a poor agreement.

The partners – these couples were a true joint enterprise during the marriage and that feeds through to how they agree things should be divided on divorce.

The housemates – these couples were individualistic during the marriage, they saw things as ‘theirs’, they kept their finances separate during the marriage, and they expect to keep what is ‘theirs’ on separation.

The parents – in these relationships the children are the most important concern, and the division of assets is structured to support parenting. The parent with care was found to be very focussed on the immediate future.

Jo considers how being aware of these divorcee types may feed into practice. Emma and Gillian hope to be able to analyse whether each type impacts on the outcome process in the future.

We discussed how spousal maintenance is relatively uncommon, and where it is granted it is definitely not a ‘meal-ticket’ for life. It is virtually always for a fixed term, and that term is generally linked with child-care responsibilities, and it is really associated with financial vulnerability of the receiving spouse. We consider whether a different term would help dispel the myths as very rarely are people ‘maintained’ – they are usually working and just having some assistance in meeting their living expenses.

The research found evidence that mediation outcomes did not work out as people expected in many more instances than outcomes arrived at through lawyer negotiations or court. We try to analyse why that may be this case; was it because people had exhausted other options and felt obligated to get to an agreement in mediation. Jo, as a mediator, considers the implications.

We invite our guests to share some concluding thoughts for reform. Gillian believes that how we share pensions (as only 11% of cases have pension sharing orders), and the needs of older children would be obvious areas for reform. Emma says that this research dispels the proposals that there should be a time-limit on maintenance, or a presumption of 50/50 sharing as that would lead to unfairness and parties being unable to meet their needs. As we look ahead to the Law Commission publishing a scoping report next September, Jo applauded the fact that Fair Shares gives a proper evidential basis for any reform.

If you would like to see all our guests speaking at the launch of the report, please follow the link below:

https://www.youtube.com/watch?v=cLTLL77qvW8