My feeling is that most people want and assume the law to be on their side, to create fairness, to right wrongs, to put things in order.
But when a person comes to me to seek fairness, it tends to be interpreted from their perspective. In a matrimonial dispute, the Court does indeed want to be fair but the definition of fairness has changed over the years. It used to be considered fair, or at least reasonable, for the husband to automatically keep the children. Gradually, women gained more rights but certainly, until relatively recently, there would not be the presumption of equality that there is now – that on divorce, all things being equal (and of course they never are!), assets could be divided equally between the breadwinner and the spouse, irrespective of gender, unless one party was looking after children and therefore had a lower earning/mortgage capacity and so needed a greater share of the assets.
Theresa May has recently criticised the Judges for not doing what she thinks is right or fair or reasonable in deporting convicted criminals. But Judges can only implement the law and the law was made by Parliament, our elected representatives. Law can be slow to reflect social change. Judges interpret and implement the law – they do not draft legislation.
One area where people often feel the law is unfair is in relation to cohabitees. If you are not married but live together in a house owned by one party, the other has no rights to that property even if they have contributed financially towards the mortgage or general upkeep of the house. That does not seem fair but the argument is that the parties should have either made sure that the property was legally owned 50/50 (if that is what they think is “fair”) or signed up to a civil partnership or marriage.
The other common experience as well as the law being ‘unfair’ is its cost. Why does it cost so much to employ a Lawyer or to deal with anything through the Courts? Why can’t Lawyers give accurate estimates of likely fees? Why can’t we operate on a fixed fee basis more often?
In relation to a straight-forward divorce, that is just the divorce, not dealing with the children or property/financial issues. The going rate is round about £1000.00 which includes Court fees of £385.00 and legal fees and VAT.
We can give estimates as to what the costs might be if matters are agreed. I think the problem lies in that people hope that everything is going to be sorted out fairly amicably. They hope that it will be dealt with easily and quickly and so cheaply. But very often one party does not behave as the other expects or hopes. One party acts “unfairly” and the other party has to deal with that and then there begins the argument about what is fair and reasonable, each party having their particular view and often not backing down, both spending quite a lot of money to press their point. Unless and until the two parties compromise, costs will be incurred and will continue to be incurred. Most Lawyers want matters to settle but settlement requires the consent of both parties and a compromise with regards to what is “fair”.