A piece by Frances Gibb, Legal Editor, in yesterday’s Times:
The UK’s most senior judge has called for changes to divorce laws, arguing that rules assigning fault can trigger unnecessary conflict and encourage people to accept unfair blame.
In comments that echoed calls by a Times campaign, Baroness Hale of Richmond, president of the Supreme Court, said that no-fault divorce and other reforms should be welcomed as they strengthened family responsibilities.
At a conference of family law specialists in Bristol, Lady Hale tackled critics who insist that removing fault from divorces would undermine marriage. “It may seem paradoxical to suggest that no-fault divorce is aimed at strengthening responsibility, but I believe that it is,” she said. “The contents of the [divorce] petition can trigger or exacerbate family conflict entirely unnecessarily. Respondents are encouraged by their lawyers to ‘suck it up’ even though the allegations are unfair. There is no evidence at all that having to give a reason for the breakdown makes people think twice.”
Lady Hale, a family law specialist, said that in 2016 some 56 per cent of divorces in England and Wales were based on adultery or other behaviour, compared with 6 per cent in Scotland, which has different divorce laws.
The Supreme Court will soon consider an appeal in which a husband has refused to divorce his wife despite her claims that she is entitled to a separation on the grounds of his unreasonable behaviour in a “loveless marriage”. Lower courts have disagreed, finding that his behaviour amounted to the “minor altercations to be expected in a marriage”. The marriage cannot be dissolved for five years because the husband does not consent.
Lady Hale said that giving unmarried couples some legal rights would also strengthen family responsibilities, and civil partnerships for heterosexuals should be welcomed as they would demonstrate that couples wanted to enter into a legal commitment.
Her comments endorse reforms detailed in The Times’s Family Matters campaign, which was launched last autumn with the Marriage Foundation. The proposed reforms include scrapping fault-based divorce, statutory backing for pre-nuptial contracts, extending civil partnerships to heterosexual couples and legal rights for long-term unmarried couples.
On planned reforms to maintenance, the judge sounded a note of caution over a move to a Scottish-style system with time limits on awards. Sometimes, she said, open-ended support from one spouse to another, the “meal ticket for life”, was fair. [J4MB emphasis. “Fair” when the open-ended support goes to the ex-wife, we assume she means.]
Lady Hale, 73, was part of a team at the Law Commission whose report called for reform of divorce laws in 1990. Its criticisms of the system were still relevant today, she said. She hinted, however, that reformers should not look to the Supreme Court for a change in the law. “It is not the job of the courts to legislate. Only parliament can do that. Our job is to interpret law that parliament has given us.” [Hopefully the High Court will “interpret law” in this way when my appeal is heard in the High Court on 10 July, in connection with my protest in June 2016 against the police/CPS not bringing prosecutions against those who mutilate male minors’ genitals, a crime – being at least ABH and probably GBH – under the Offences Against the Person Act 1861.]
On giving long-term unmarried couples greater financial rights, she said that “this too is a way of strengthening family responsibilities”. [J4MB emphasis. “Greater financial rights” for women over men, we can safely assume she means.] Courts had been urging it for decades and Scotland had introduced such rights.
Sir Paul Coleridge, chairman of the Marriage Foundation, said: “Baroness Hale’s ringing endorsement of main features of The Times campaign provides yet further top-level endorsement of its validity.”
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