Spring Speeches Show Support for Family Law Reform
Two prominent voices in family law have recently echoed with similar opinion; the family justice system in England and Wales is ripe for change.
In March, Sir James Munby gave a speech to Edinburgh University’s Law School on the areas of English and Welsh family law which, in his opinion, most need change, while in April, the President of the Supreme Court, Baroness Hale of Richmond, spoke out to say she feels the current system of divorce is confusing, misleading, discriminatory, and unjust.
Sir James cited the trials of online divorce petitions as a significant step forward, describing a system whereby applicants will no longer fill out a traditional, paper divorce petition, but instead complete an “online questionnaire” which is user-friendly and formulated to “tease out” all the necessary information in a “fool-proof” manner.
In a speech made to a group of family lawyers, Lady Hale called for an online divorce process which could potentially become a “one-stop shop” whereby the various applications for property and finance orders, and arrangements for children, could all be made through a single online divorce application.
There were wide-ranging reforms and improvements suggested by both speakers. Sir James highlighted a variety of family law areas including rights of cohabitants, divorce law, ancillary relief on divorce, access to and reporting of cases in the family division, and cross-examination in person of alleged victims by alleged perpetrators of domestic violence.
Lady Hale commented on a number of other family law issues and renewed her calls for a system of no-fault divorce which could alleviate some of the significant problems couples currently experience when applying for divorce.
She stated that the current adversarial system, which unless the couple has been separated for at least two years requires one party to pick a reason (fact) for the relationship breakdown, is, Lady Hale says, misleading because the “fact used as the peg on which to hang the divorce petition may not bear any relationship to the real reason why the marriage broke down.” She added that this is unjust as it suggests one person is largely to blame for the breakdown and this provokes “unnecessary hostility and bitterness”.
On the same point, Sir James referred back to the case of Owens v Owens in which the wife failed to establish a ground for the breakdown of her marriage. Although the nature of the breakdown was obvious to the court, the judge could not, under current matrimonial law, justify the wife’s entitlement to a decree and so, the woman is left to wait for five years before the rules on separation will entitle her to seek a decree without consent.
And as we await the Supreme Court appeal hearing of Owens v Owens in May, it will be interesting to see whether the ruling will have any bearing on subsequent UK case law.
Like Sir James Munby, Lady Hale also made calls for improvement to rights for unmarried couples and she voiced her support for the legal backing of prenuptial agreements.