How do you predict how the court will treat your finances if you get divorced?

Financial remedies law is very reliant on guidance given by senior judges in previous cases. But the only cases that get reported are those that reach the High Court or Court of Appeal. And that means that they are nearly always dealing with the divorces of the very well off.

How do you take principles established in high value cases and apply them to cases involving more normal amounts of money?

That is the question this website is designed to explore.

Why now?

There is a huge push at the moment for “everyday” decisions to be published.

The Law Commission wants to see examples of real decisions to support its current review of financial remedies laws. The President of the Family Division has suggested that 10% of all family judgments should be published, and the Transparency Implementation Group has set a target of 5 judgments per year per judge. The Transparency Reporting Pilot scheme will shortly be extended from cases concerning children to include financial cases too.

In short, we are on the cusp of getting much greater visibility of how judges are treating middle money cases in practice. It is the perfect time to review what the law already says about these cases and then to monitor whether it reflects what judges are doing in practice.

The Two Houses Framework

The plan is to review the existing and emerging case law to work out whether cases are treated in a consistent and predictable way.

The working hypothesis is that although each case will turn on its own merits, there are clusters of cases that share characteristics because they share a principle focus, and that those clusters match up with the number and quality of houses that the couple can afford when they separate.

This is only a hypothesis; a working model. Its aim is to help identify patterns, not dictate them. If judges turn out to be treating cases in a different way, it is the framework that will need to change, not the judges.

The suggestion is that cases fall into one of six groups depending on what level of housing the couple can afford post-separation:

Big Money – There is enough money to buy two nice homes (perhaps comparable to the family home) without any mortgages.

Two Homes Comfortably – There is enough money to buy two nice homes (perhaps comparable to the family home) using mortgages.

Two Homes at a Stretch – There is enough money to buy two homes (with mortgages), but not at the level of the current family home.

One Home – There is enough money to fund the purchase of one property, but not two.

Sub-Needs – The parties have some money, but it will not be enough to buy a house (even with a mortgage).

Small Money – Decisions dominated by considerations such as debt, bankruptcy and the effect of any settlement on benefits.

Consequences

If this framework is an accurate reflection of how the court looks at middle money cases in practice then we should expect to see two things:

• First, it should be the case that some issues and arguments feature regularly in some clusters but only rarely in others.
• Second, we should find that parties are arguing about which box their case falls in, as this will affect whether an issue that is important to them ends up being significant to the court’s decision or not

We will look elsewhere at which issues assume significance in each cluster, and the arguments that are made to try to push a case into one box or the other.

The Middle Money Project

The plan for this website is to review the existing caselaw, identifying whether the court has in the past drawn dividing lines between different categories of middle money cases.

We will also review emerging case law as it is published, particularly the “everyday” cases that are starting to appear from District and Circuit Judges, to see whether the categories we have identified reflect the way that judges are dealing with cases on the ground.

Finally, if the model does not match up with the caselaw, to continue to review and develop the framework to align it with practice, in the hope that it can one day be used to help guide judges and litigants on how their case is likely to be resolved.