Cambridge Family Law hosted an invitation-only event on financial remedies in England & Wales and Australia in Trinity College in September. The event, conceived in part as a belated sequel to a similar event that had been held in Oxford in 2004, was convened by Jo Miles and Belinda Fehlberg, visitor at the Centre for the Long Vacation 2017. It was generously supported by the Cambridge Humanities Research Grant Scheme, the University of Melbourne International Collaboration Fund, and Trinity College, Cambridge.
The family law and process approaches for resolution of financial (i.e. property and spousal maintenance) disputes on divorce in these two jurisdictions have much in common. Most obviously, each system has at its centre a broad judicial discretion to make orders that are 'fair' (E&W), 'just and equitable' or 'proper' (Australia), yet also the practical reality that most separating spouses reach financial settlement privately and without involvement of family law system professionals (that is, courts, lawyers or mediators). Since the 1980s, each system has contemplated major change directed at providing greater clarity regarding how judicial discretion is likely to be exercised, in order that the vast majority who negotiate outside the courts can more readily 'bargain in the shadow of the law'. This goal has become more urgent in recent years, fuelled by shrinking legal aid budgets and concern about the effectiveness of laws that offer no clear direction as to outcome, particularly for people reaching settlement in the absence of professional advice. Yet it is also the case that since the 1990s, family law policy and reform in both jurisdictions has been largely dominated by concerns regarding parenting and child support laws and processes. This is notwithstanding the consistent research finding since the 1980s that women, especially women with dependent children, are likely to experience significant financial disadvantage after divorce.
The two-day workshop provided an intensive opportunity for key academics from law and economics, socio-legal researchers and legal professionals from both jurisdictions to share their research, exchange ideas, and think about what changes in their jurisdictions could encourage the 'fair', 'just and equitable' and 'proper' outcomes that their respective systems require.
It is planned that papers from the workshop will be published in two special issues of the Australian Journal of Family Law during 2018, helping to inform careful reflection in E&W, Australia and beyond regarding the wisdom and form of future policy and reform initiatives in this area.