Reconsidering the Duxbury Default

Research output: Contribution to journalArticle (Academic Journal)peer-review

Abstract

In financial remedy cases, the Duxbury calculation is used primarily as a guide for capitalising periodical payments. It has also on occasion been controversially used to assist in the calculation of the non-pension capital to be offset against a pension. Whilst it has its roots in the pre-White v White era of ‘reasonable requirements’, it continues to be used by the courts in financial remedy cases in England and Wales, albeit as the maxim states, as a ‘tool not a rule’. Its importance in practice means that it has attracted a considerable body of professional commentary and analysis within both legal and financial fields. However, it has attracted less academic scrutiny. This article provides the first academic exploration of Duxbury through an examination of its history and present-day use. It presents findings from an analysis of reported cases over the past 10 years and suggests that the use of the calculation has become more of a ‘rule than a tool’. It considers the longstanding appeal of the calculation and its use by the courts, exploring why the courts appear reluctant to move away from it. It suggests that the calculation has neoliberal underpinnings which are apposite in an era where the dominant socio-political narrative leans heavily towards neoliberalism. It further argues that this neoliberal foundation has aided the Duxbury calculation’s survival despite cogent criticism of it.
Original languageEnglish
JournalChild and Family Law Quarterly
Publication statusAccepted/In press - 4 Jul 2021

Keywords

  • Financial Remedies
  • Duxbury calculation
  • neoliberalism
  • capitalising periodical payments

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