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It is here in which issues of family law fairness perhaps stands most delicately poised in the future. What is fairness? How do we decide? This paper has set out some fairness elements and then worked at implications in specific national and international laws, procedures, processes and resolutions.
However these are laws and legal practices. What do these laws do when faced with individual codes of fairness?
If and once fairness is accepted as being based on an individual’s or an individual couple’s sense of fairness, how does the courts and other adjudicators ascertain the sense of fairness?
One solution might be a contractual family law resolution process in which the couples contract into a supra family law system which is then applied and is adjudicated upon by judges in each jurisdiction without reference to their own national laws. This is a distinct possibility for the future. However it has its problems.
Another just as likely scenario is a priority of personal laws with each party having their own sense of fairness according to those personal laws. In this, the mediation experience is informative. Mediators often find that the benefit of being alone with the couple is that couples do have their own distinctive senses of fairness which is not contradictory to national senses of fairness but can be towards the margins. Yet within mediation, this is acceptable. Has the time come or is the time coming when this personal sense of fairness leaves the mediation room and is challenged in the court room? What then is the fairness criteria when a couple cannot agree?
Has the law, and this debate, then gone full circle and the court has to impose its own objective criteria?!
From whence cometh that criteria?
• There needs to be an international family law debate on when, if at all and if so in what circumstances, non national laws, specifically personal, religious and similar laws, will be allowed to have any weight within the family law fairness exercise
• this debate cannot be discriminatory but equally cannot be discriminatory of Christianity as the historically original religious foundation across Europe of nationally held notions of fairness
• if any non national laws are to be permitted to have any weight, what are the criteria? Specifically what are the criteria to avoid outcomes which may severely offend general senses of justice and fairness?
• Should there be an exploration of a supra international family law into which international families can contract and which would be enforceable across all jurisdictions
Europe has not just been the cradle of the modern world. It has been the primary exporter of many ideas and notions of fairness, justice, adjudication and resolution.
There are now very many international families. For many of them, they are living in an international community, working in an international market place, trading in an international shopping mall with international brands, preferring to use international currencies and keenly aware of international political and religious/ethnic issues. They deserve better on their relationship breakdown than an xenophobic
rat bag of:
• Directly conflicting laws on outcomes
• Directly conflicting laws on jurisdictions
• Directly conflicting laws on stays
• Directly conflicting laws on divorce
• Directly conflicting laws on child support
• Directly conflicting laws on the financial outcome
• Directly conflicting laws on working out the best arrangements for children
• Laws which favour the first party to break up the marriage
• Laws which favour the wealthy
• Low level, lesser qualified, inexperienced judges dealing with international cases
• Major difficulties in international enforcement
• General jingoistic nationalism Our increasingly closer European connections allow the best opportunity worldwide for family law to debate and co-work on issues affecting international families. At heart is the question of what is fair. This will not be found in the imposition of specific laws. It will be found in a combination of jurisprudential, academic and theoretical exploration alongside pragmatic and practical analysis by those in daily practice. This combination should then allow the application of fairness principles into law, practice, procedure and policy.
Family law fairness is not an elusive ideal. It is essential work for all of us committed to international families and their children.
David Hodson is a family law dispute resolution specialist. He is a English solicitor (1978 and accredited 1996), mediator (1997), family arbitrator (2002), Deputy District Judge at the Principal Registry of the Family Division, London (1995) and an Australian (NSW) solicitor (2003) and mediator.
He was joint founder in 1995 of probably the world’s first metropolitan practice to combine family lawyers, mediators and counsellors and with an emphasis on a conciliatory and holistic approach. It was subsequently copied in many practices across the world. He is past chairman of the Solicitors Family Law Association’s Financial Provision Reform Committee, Training Committee and Good Practice Committee and is an original member of its International Committee. He is a member of the Law Society’s Family Law Protocol Committee. He is a member of the President’s International Committee. He is past vice chair of the UK College of Family Mediators, the umbrella organisation for family mediation. He is a member of the Chartered Institute of Arbitrators. He is co-author of “Divorce Reform: a Guide for Lawyers and Mediators”, “The Business of Family Law” “Guide to International Family Law” and consulting editor of “Family Law in Europe”. He is a SFLA Accredited Specialist (with portfolios in Substantial Assets and International Cases), a Fellow of the International Academy of Matrimonial Lawyers, a past trustee of Marriage Resource a member of the Family Law Section of the Law Council of Australia and a member of the Lawyers Christian Fellowship.
He has written and spoken extensively on family law including many conferences abroad. Some papers and articles can be found at his web site below.
He is practising in London and Surrey, England and Sydney, Australia via his practice, Panorama Legal Services, Guildford, and as a consultant at The International Family Law Group, Covent Garden, London, www.iflg.uk.com More details can be found at www.davidhodson.com. He can be contacted on dh@davidhodson.