Partner Lesley Smythe examines the recently launched Financial Remedies Court reporting pilot in an article for The Times.
Lesley’s article was published in The Times 8 February 2024, and can be found here.
Last week marked the beginning of a pilot scheme in which the names of those involved in financial hearings within their divorce process will be published in court lists, as part of a drive towards greater transparency in the family court system.
In the latest move to improve accountability within the courts, reporting on proceedings in the Financial Remedies Court (FRC) can take place at the Central Family Court in London, as well as in Leeds and Birmingham.
Advocates of this initiative assert that it will give the public an insight into the workings of the family courts. Inconsistent approaches taken by different judges on asset division and spousal maintenance payments could be rightfully exposed for the first time, they contend.
Our family courts rightly work on the principle of discretion, allowing judges to make decisions that are fair in the context of a separating couple’s financial position, in an area of the law that is highly dependent on unique personal circumstances. No two people or cases are the same.
In these conditions, it is hard to see why the main aim of the transparency scheme, to round-out inconsistent rulings, is even necessarily desirable.
Those going through a divorce can already access the information they need either through solicitors providing expert guidance, or by conducting their own research, for example on what range of orders they can expect, or the expected shape and duration of the process.
The guidance issued following the transparency review conducted by Sir Andrew McFarlane, President of the Family Division of the High Court, clearly lists core principles that are suggested judges avoid disclosing through their powers to grant Transparency Orders. These include intimate identifying information such as names, addresses, assets, schools, and employers.
While such details are not automatically displayed under the pilot, considering several senior judges – the now retired Mr Justice Holman and Mr Justice Mostyn chief among them – have been calling for full transparency in recent years, those seeking to put separating couples’ financial details on public display will certainly be emboldened by the direction of travel that the pilot represents.
With this in mind, it seems extremely unfair that two people who have already made the difficult decision to end their marriage could in future be exposed to a situation in which the general public might know about their finances.
While the new transparency pilot is undoubtedly well-intentioned, a likely consequence is that it will put pressure on parties to settle early, just to avoid being put in the spotlight.
As the pilot scheme beds in over the coming months it is vital that, should these measures be found to adversely affect family separations at court, they are not made permanent.