Judge criticises ‘nihilistic’ family law litigation

There is always a better way: A judge has criticised the ‘nihilistic’ litigation pursued by a divorcing couple and their legal teams in a recent case. The reported case of Crowther v Crowther & Ors (Financial Remedies) [2021] EWFC 88 highlights just how out of control litigation and the legal costs involved in such proceedings can get. In this case the parties were incredibly acrimonious with each other over how their marital assets should be divided following the breakdown of their relationship.

In some cases where spouses or civil partners are unable to agree on the division of assets, the Court askes each party to produce a S25 Statement. This Statement is designed to allow each party to explain why they feel they should get their designated share of the marital assets based on the list of criteria the Court must take account of within section 25 Matrimonial Causes Act 1973.

In most cases spouses might produce 2 or 3 versions of this Statement. In the Crowther case, Mr Justice Peel noted ‘with dismay’ that the wife’s s25 statement was her 15th statement in the proceedings and the husband’s his 26th. There had been 34 court hearings prior to the hearing he presided over in 2021 and the bundles for this hearing (4 of them; a core bundle, a library bundle and two supplemental bundles) exceeded 6,000 pages.

The total costs stood at about £2.3 million. The wife’s legal costs (excluding divorce, children, and occupation order proceedings, but including the costs of Admiralty proceedings and a preliminary issue referable to financial remedies) amounted to £1,427,606; the husband’s (on a like for like basis) were £920,316.

The judge commented, “Each party thinks the other is, to use their own words, ‘out to destroy’ them. These proceedings have been intensely acrimonious. They, and their lawyers, have adopted a bitterly fought adversarial approach. I asked myself on a number of occasions whether the aggressive approach adopted by each side has achieved anything; it seems to me that it has led to vast costs and reduced scope for settlement. The toll on each party is incalculable (W was visibly distressed during the hearing) and, from what I have heard, the impact on the children has been highly detrimental.”

Mr Justice Peel also concluded, “The only beneficiaries of this nihilistic litigation have been the specialist and high-quality lawyers. The main losers are probably the children who, quite apart from the emotional pain of seeing their parents involved in such bitter proceedings, will be deprived of monies which I am sure their parents would otherwise have wanted them to benefit from in due course.”

There is always a better way to resolve disputes and divide marital assets without the need for so many court hearings and extravagant legal costs. All other forms of dispute resolution should be explored thoroughly before any court application is made and wherever possible, spouses or civil partners should continue to discuss matters directly to see if they can reach their own mutually acceptable terms of settlement.

At Barker Gotelee we can explore all possible options and advise on the potential costs for each option. Our initial consultation process is a fixed price fee with no obligation at the end of the meeting to instruct us further. Call our family team today on 01473 611 211 for more information.

Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors in Ipswich.

Ipswich Family Solicitors – for more information on our range of legal services, please call the team on 01473 611211 or email [email protected]