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Rules Versus Discretion in Financial Remedies on Divorce

Research output: Contribution to journalArticle

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Rules Versus Discretion in Financial Remedies on Divorce. / Hitchings, Emma; Miles, Joanna.

In: International Journal of Law, Policy and the Family, Vol. 33, No. 1, eby017, 01.04.2019, p. 24-50.

Research output: Contribution to journalArticle

Harvard

Hitchings, E & Miles, J 2019, 'Rules Versus Discretion in Financial Remedies on Divorce', International Journal of Law, Policy and the Family, vol. 33, no. 1, eby017, pp. 24-50. https://doi.org/10.1093/lawfam/eby017

APA

Hitchings, E., & Miles, J. (2019). Rules Versus Discretion in Financial Remedies on Divorce. International Journal of Law, Policy and the Family, 33(1), 24-50. [eby017]. https://doi.org/10.1093/lawfam/eby017

Vancouver

Hitchings E, Miles J. Rules Versus Discretion in Financial Remedies on Divorce. International Journal of Law, Policy and the Family. 2019 Apr 1;33(1):24-50. eby017. https://doi.org/10.1093/lawfam/eby017

Author

Hitchings, Emma ; Miles, Joanna. / Rules Versus Discretion in Financial Remedies on Divorce. In: International Journal of Law, Policy and the Family. 2019 ; Vol. 33, No. 1. pp. 24-50.

Bibtex

@article{3e5bec24f1554de8a33d099be4090aa6,
title = "Rules Versus Discretion in Financial Remedies on Divorce",
abstract = "This article draws on data from a recent empirical study to examine the role of discretion in financial remedy cases on divorce, particularly in the ‘everyday’ needs-based cases that constitute the bulk of the caseload in England & Wales. It explores practitioner and judicial experiences and perceptions of the discretionary Matrimonial Causes Act 1973 regime to inform current debates about potential law reform in this area. In particular it provides findings on the issue of geographical variation in outcome as a lens through which to examine the rules versus discretion conundrum. The central argument made is that (1) the rules-discretion question is not a stark choice between opposites, but rather requires a decision about where along a spectrum between those poles to place a given legal regime; and (2) that the issue must be addressed in terms of both (a) substantive principle, where clarity and consistency about what the financial settlement should be seeking to achieve is vitally important, and (b) the law’s practical operation – the fashioning of particular packages of orders transferring value between the spouses – where greater discretion may be necessary to ensure fairness.",
author = "Emma Hitchings and Joanna Miles",
year = "2019",
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doi = "10.1093/lawfam/eby017",
language = "English",
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pages = "24--50",
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issn = "1360-9939",
publisher = "Oxford University Press",
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RIS - suitable for import to EndNote

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T1 - Rules Versus Discretion in Financial Remedies on Divorce

AU - Hitchings, Emma

AU - Miles, Joanna

PY - 2019/4/1

Y1 - 2019/4/1

N2 - This article draws on data from a recent empirical study to examine the role of discretion in financial remedy cases on divorce, particularly in the ‘everyday’ needs-based cases that constitute the bulk of the caseload in England & Wales. It explores practitioner and judicial experiences and perceptions of the discretionary Matrimonial Causes Act 1973 regime to inform current debates about potential law reform in this area. In particular it provides findings on the issue of geographical variation in outcome as a lens through which to examine the rules versus discretion conundrum. The central argument made is that (1) the rules-discretion question is not a stark choice between opposites, but rather requires a decision about where along a spectrum between those poles to place a given legal regime; and (2) that the issue must be addressed in terms of both (a) substantive principle, where clarity and consistency about what the financial settlement should be seeking to achieve is vitally important, and (b) the law’s practical operation – the fashioning of particular packages of orders transferring value between the spouses – where greater discretion may be necessary to ensure fairness.

AB - This article draws on data from a recent empirical study to examine the role of discretion in financial remedy cases on divorce, particularly in the ‘everyday’ needs-based cases that constitute the bulk of the caseload in England & Wales. It explores practitioner and judicial experiences and perceptions of the discretionary Matrimonial Causes Act 1973 regime to inform current debates about potential law reform in this area. In particular it provides findings on the issue of geographical variation in outcome as a lens through which to examine the rules versus discretion conundrum. The central argument made is that (1) the rules-discretion question is not a stark choice between opposites, but rather requires a decision about where along a spectrum between those poles to place a given legal regime; and (2) that the issue must be addressed in terms of both (a) substantive principle, where clarity and consistency about what the financial settlement should be seeking to achieve is vitally important, and (b) the law’s practical operation – the fashioning of particular packages of orders transferring value between the spouses – where greater discretion may be necessary to ensure fairness.

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