Rules vs Discretion: Calibrating the Scales for Financial Remedies on Divorce

Abstract

This thesis will critically analyse the extent of judicial discretion provided by the Matrimonial Causes Act 1973, specifically for the purposes of the law relating to financial remedy orders. Through a theoretical perspective, this thesis will examine the relationship between rules and discretion, with the aim of determining how these opposing components of the law ought to be balanced. It will be argued that in order to ascertain the ‘ideal balance’ for financial remedies, it is first necessary to discern the overarching purpose of the law. Upon answering this fundamental question, naturally it will be queried what the appropriate balance between rules and discretion is for financial remedies, and whether the current legal framework aligns with this inference. Ultimately, this thesis will conclude that reform is necessary to adjust the extent of discretion and rules provided in the statute in an attempt to resolve the deficiencies of the Matrimonial Causes Act 1973 applicable to the granting of financial remedy orders.