I was thrilled to notice the arrival of the first wellness festival in Cheltenham. Running from 9 – 15 September this year, the festival has been described as a week-long immersive festival that will open people’s eyes to the world of wellbeing.
I frequently advise my clients going through a divorce or separation that self-care is so important. It comes as no surprise that divorce is stressful. Be it managing day-to-day life, worries about your children, fear of the future and resolving financial matters the process is full of complicated and emotional hot spots.
The role of a divorce lawyer is to support clients through clear and positive advice and to help find a resolution smoothly and swiftly. A good divorce lawyer will reassure you that you’re not alone and make the, sometimes, confusing legal language accessible and understandable.
We can certainly help to dial down the stress, but I cannot say enough about the importance of self-care. It is not selfish. It will help you to find the headspace you need to make well-informed and calm decisions about you and your family’s future.
The ‘wellness and mindfulness’ movement can feel intimidating at the start, but I always say to clients that the biggest impact is caused by small, simple changes.
Here are five of my favourites:
Move, we all know the benefits of exercise on our bodies and mind and I couldn’t agree more. Being active, in whatever way works for you, is such a vital tool in caring for yourself. Take a walk, jog or run in the fresh air. Try a yoga class. Go swimming.
Meditate, something I know that some clients have struggled with but if you find the right technique for you it really can make a positive difference in your stress levels. Apps such as Headspace and Calm are useful with lots of guided meditations. Or take your meditation outside and practise mindful walking; a simple technique of walking whilst being aware of every step and breath. It can be practised anywhere, country or city.
Switch off, we are so consumed by 24-hour information feeds on our tablets, TVs, phones etc. It is very easy to feel overwhelmed, particularly at a time of heightened anxiety and stress. A key piece of advice I give to my clients is to, where possible, take a break from social media. Not only can the information you share impact on your case outcome but looking at the fake world presented on the channels can add to unfounded feelings of failure.
Eat well, we all know the importance of nutrition and that a healthy diet means a healthy mind, but it is true. What we eat, and drink affects how we feel, act and behave. Some simple tips: reduce caffeine, alcohol, sugar and processed foods. Focus instead on fresh produce and fill your plate with colourful fruit and vegetables. Try nourishing and warming food that is easy on your digestion. Even a hot drink (caffeine-free) can help to calm your central nervous system.
Sleep, easier said than done when your mind is racing, and you are pacing at 2 am worrying about paying the mortgage but any sleep hygiene can help. I had one client that swore by a hot lavender bath every night. Another found setting a strict bedtime routine helped including no TV or device after 9 pm. Again, it’s a personal thing but getting your sleep back on track has a positive impact on your well-being.
Good common-sense advice but I often find my clients throughout their divorce or separation worry about how it will impact on everybody else and neglect themselves at a time when they need it the most. Small changes do make the biggest difference and keeping yourself healthy and rested will benefit you and all those around you.
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Louise Chipchase recently opened the Stowe Family Law in Cheltenham. She has extensive experience in all aspects of family law including divorce, financial settlements, cohabitation and nuptial agreements.
The concept of ‘fairness’ is, of course, at the very heart of our legal system. It means that the system should be fair towards all parties. Thus, for example, when any type of application is made to a civil court, the respondent should not be at any disadvantage merely by virtue of not being the party who issued the application. Accordingly, to give a specific example, the respondent to a financial remedies application is, in theory at least, likely to achieve the same outcome that they would have done if they had been the party making the application. To put it the other way, there is no advantage in being the party who issued the application.
But when it comes to divorce itself, things are not quite so clear, and they may become very much less clear if the government’s Divorce, Dissolution and Separation Bill, which aims to introduce a system of no-fault divorce, is passed in its original form.
As drafted, the Bill proposes that a divorce will take a minimum of 26 weeks. There will be the usual six weeks between the conditional order (which will replace the decree nisi) and the final order, which will replace the decree absolute. However, before the conditional order can be made, the period of twenty weeks must have elapsed since the start of the proceedings, i.e. when the applicant, or both parties jointly, filed with the court a statement that the marriage had irretrievably broken down. The twenty week period is the so-called “period for reflection”, designed primarily to give the parties time to reconsider.
But in their written evidence for the Bill’s committee stage the Law Society raised an issue with this. They point out that, where the application is made by one party only, the respondent may not receive notice of the divorce until some considerable time after the proceedings started, for example due to court delays, interference from the petitioner/applicant in delaying receipt by the respondent, or the simple length of time of delivery if the respondent is living abroad. They say that this “is unfair on the recipient [i.e. the respondent] and allows no direct opportunity for reconciliation or mediation.” They therefore propose that the twenty week period only begins when the respondent has actually been served with the divorce application.
Although not directly relevant for the purposes of this post, I should say at this point, for the sake of completeness, that supporters of the Bill in its current form point out that if such an amendment were made then that would give respondents the opportunity to delay the divorce by deliberately avoiding service, or even to suggest that they will only accept service if the applicant agrees to their terms regarding financial matters, or arrangements for children.
Leaving that point to one side, just how important is the period for reflection? As I’ve said here before, the marriage is almost always finally over before the divorce proceedings are commenced, and during the committee debate, the Parliamentary Under-Secretary of State for Justice Paul Maynard accepted that the prospect of a couple reconciling once divorce proceedings have started is low. So I question whether it is really that important anyway (personally I would reduce its length, or do away with it entirely, not that I believe that will happen).
In any event, the particular nature of divorce, which makes it so different from most, if not all, other legal remedies, is that the ultimate decision does not lie with the courts. The courts can do nothing to repair a broken marriage. Only the parties together can do that. And if the party who applied for the divorce does not want to reconcile, then there is nothing the respondent can do about it – the marriage is over. It therefore matters little or nothing if the respondent has not been given the full twenty weeks for reflection. Yes, it is true that during the twenty weeks the respondent could try to persuade the other party to change their mind, but surely, the respondent will already know that their marriage is in difficulties, and will, if they want to save it, already be doing all they can to that end?
Obviously, the divorce should not go through if the respondent has not been served, but otherwise my view on this point is that the reality is that there would be little or no unfairness to the respondent if they did not get the full twenty weeks (of course, they will not get it anyway, unless they are served on the very day that the application is issued, which must be extremely unlikely).
Otherwise, I’m sure some, or even many, may say that the other glaring ‘unfairness’ to the respondent under the proposed new law is that they are denied the right to defend the divorce. Surely, everyone has a right to defend any application made against them? I can deal with this quite quickly. As I said above, divorce is not like any other legal remedy, and defending a divorce does not repair a broken marriage. It is ultimately a pointless exercise. The whole question of fairness does not come into it. In any case, it may be said that effectively little will change, as the current law does not really give the respondent the chance to defend a divorce anyhow, only to delay it.
The Bill has completed its committee stage in the House of Commons, without amendment, and is now due to have its report stage and third reading, on a date to be announced. The Bill’s page on the Parliament website is here. You can find the Law Society’s written evidence for the Bill’s committee stage, here.
I think it is well known that the whole field of pensions and pension provision can be extremely complicated. And that is without adding in the additional complication of divorce.
Since the year 2000 family judges and lawyers have had to grapple with pension orders on divorce. Prior to that, the court had no power to deal directly with pensions. Of course, pensions were always relevant when considering a divorce settlement, but before 2000 there was really only one way of dealing with them, i.e. the ‘offsetting’ arrangement, whereby the spouse without the pension would be compensated by having the lion’s share of other assets. That was far from satisfactory, particularly when there weren’t enough other assets available to compensate the non-pension holding spouse, hence the introduction of pension sharing and pension earmarking (now known as ‘attachment’) orders.
But this led to a problem. Judges and lawyers had to struggle to understand a large and complicated new field of expertise in which they had no experience, and no time for more than a cursory amount of training. I remember myself how difficult it was to get to grips with it when I was practising.
And it is absolutely essential that judges and lawyers know what they are doing. Pensions can be one of, or even the most, valuable assets in a marriage (in many cases only the matrimonial home itself is more valuable), and ensuring that both parties have proper and appropriate provision is critical.
Obviously, the lack of expert knowledge can lead to inappropriate orders. But it can also lead to inconsistency between courts and judges, making it even more difficult for lawyers to advise.
The need for proper guidance in this area is quite clear. And now at last, as I mentioned here on Friday, we have it. The Pension Advisory Group, a multi-disciplinary group of professionals specialising in financial remedies and pensions on divorce, jointly chaired by Mr Justice Francis and His Honour Judge Edward Hess, and supported by the President of the Family Division and the Family Justice Council, has published a guide to the treatment of pensions on divorce.
And what a guide it is. I am not qualified to give it any sort of review, particularly as I have not been practising for some ten years, but to my inexpert eye its 176 tightly-packed pages seem to cover most if not all that judges and lawyers need to know when dealing with pensions on divorce. I certainly wish I had had something similar nineteen years ago!
The guide is divided into 14 parts, covering everything from the essential but not always straightforward task of computation of pension assets, through dealing with pensions fairly on divorce, to taxation and international issues. And it deals with all types of pensions, including a section devoted to state pensions. The guide is topped off with no fewer than 24 appendices, including a very useful glossary (pensions, like the law itself, are rife with impenetrable technical terms), a procedural guide, and just about every conceivable reference anyone dealing with pensions on divorce should require.
The guide really does seem to be the complete ‘one-stop shop’ for anyone seeking the necessary information to deal properly with pensions on divorce. All divorce practitioners should definitely read it, and keep a copy on their virtual bookshelf (or, if they are so inclined, run off a printer-friendly copy).
But what about litigants in person? It is easy to imagine that many people who may be ‘entitled’ to a pension order may not be able to afford legal representation. The idea of them struggling to ascertain and then realise their entitlement does not paint a pretty picture. Would this guide help them?
Well, the guide is certainly written with the professional reader in mind. I can see, however, that a determined and reasonably skilled litigant in person could garner a great deal of useful information from the guide, but attempting to deal with such complex matters on their own is still an extremely risky endeavour. One might think that there might be a market for a ‘lay person’s guide to pensions on divorce’, but putting such a difficult subject into terms that a layperson could reasonably be expected to understand would be a monumental, and possibly even impossible, task.
If you do wish to have a look, you can find the full guide here. There is also a briefer, and therefore more easily digestible, Executive Summary, here.
Financial remedy applications on divorce are decided by the court, having regard to a list of relevant factors set out in section 25 of the Matrimonial Causes Act 1973. One of those factors is the duration of the marriage. Obviously, therefore, the court must determine how long the marriage lasted, i.e. the time between the date of the marriage and the date that the parties finally separated. As we shall see, this is not always a simple task.
In the recent High Court case MB v EB Mr Justice Cohen was being asked to determine three preliminary issues in connection with the husband’s financial remedies claim: the length of the marriage, the impact of a separation agreement entered into by the parties in 2011, and whether there was any ‘marital acquest’, i.e. assets acquired by the couple during the marriage. The facts of the case were, as Mr Justice Cohen stated, most unusual.
In order to keep this post to a reasonable length I will have to summarise those facts very briefly, although they really need to be examined at length to get the full picture.
The parties met in 1999 and married in England in the following year. There were no children. The husband is now aged 58 and is an artist. The wife is now aged 63 and is a businesswoman.
The parties were, it was agreed, together until 2004, at that time living in Vienna. However, early in 2005 the husband moved permanently back to England, where he had an affair with another woman. Despite this, the parties continued to have a relationship of sorts, with the husband visiting the wife from time to time. The wife herself returned to England in 2006.
In 2009 negotiations began between the parties for some form of financial settlement. Eventually in 2011 terms were agreed, and a separation agreement was entered into. The agreement stated that the parties had separated on 2004 and that its terms were accepted by both parties in full and final satisfaction of all financial claims by either party against the other. Under the agreement the wife would provide a sum of up to £245,000 for the husband to purchase a property of his choice, and would pay him a further lump sum of £35,000. Shortly afterwards the husband bought himself a flat in Hove.
But the separation agreement did not necessarily mark the end of the marriage. The parties’ relationship continued, much as before. The wife also provided further financial assistance for the husband.
By the summer of 2016, however, the bonds of affection and friendship between the parties were plainly becoming strained, to use Mr Justice Cohen’s words. The husband had formed a relationship with another woman and in September he gained entry into the wife’s flat without her permission and, according to the wife, removed items that did not belong to him.
The wife then instructed solicitors, and in August 2017 the husband issued divorce proceedings, followed by his financial remedies application. The three issues referred to above fell to be determined by Mr Justice Cohen.
As to the issue of the length of the marriage, the husband argued that it continued until September 2016, and the wife maintained that it ended no later than 2004. Mr Justice Cohen agreed that the marriage came to an end in the sense that the parties ceased to be in a marital partnership in 2004, but found that that the parties remained in “an emotional and enmeshed relationship” until 2016.
As to the separation agreement, the husband argued that it was void, due (inter alia) to the wife pressuring him to enter into it. In the alternative, he argued that it would be unfair to hold him to agreement because he and the wife did not in fact separate (as the agreement contemplated), and holding him to the agreement would leave him in a predicament of real need. Mr Justice Cohen’s conclusion was that the agreement was valid, and that the husband had no ground for vitiating the agreement, save for a potential argument that it did not meet his needs.
Lastly, as to the question of the marital acquest, Mr Justice Cohen found that there was none. The wife had throughout been dependent upon her family.
Of course, the big question is: what will be the consequences of these findings upon the final outcome of the case? That, as Mr Justice Cohen said, is a matter for another day.
You can read the full report of the judgment here.
Today, 31% of British women are the main financial provider in their family, an impressive rise of 80% in the past 15 years. This is a welcome and clear sign of greater gender equality and something that should be celebrated and encouraged.
Divorce legislation in the UK is gender neutral, but it is a different matter when it comes to the court applying it as such.
The legislation is clear that lump sum capital awards and maintenance orders can be made to either party in a divorce, irrespective of gender.
The courts in the UK have a very long history of awarding generous maintenance payments to wives, both in terms of length and quantum. However, in my 10 years practising there appears to be an uphill battle to persuade the courts to award maintenance to a man.
Why is it rare to see the court order a wife to pay maintenance to a husband?
The Court has a wide discretion to make a whole range of orders, however the judges at the business end of the awards are like any other member of society, an individual with a wide range of views, opinions, beliefs and potential bias all moulded by their own upbringing, socio-economic background and experience.
Perhaps this plays a role in the conclusion that women are still to be viewed as the vulnerable party in need of protection, the homemaker and primary carer for the children, who even if earning double that of the husband shouldn’t be expected to shell out a monthly maintenance.
To set aside these subconscious views and beliefs when deciding is impossible. The wide-ranging powers and discretion afforded allow for an individual view and assessment of a case, which inevitably leads to unpredictable outcomes. It is the reason why family lawyers so often advise their clients to try and settle their case and avoid a Final Hearing where the eventual determination can be so uncertain.
All this being said, there has been several high-profile celebrity divorce cases where men have been triumphant in divorce. Guy Ritchie reportedly received a settlement of £50m from ex-wife Madonna, the largest ever settlement for a man.
It can also be said that there has been a general increase in more generous pay-outs to men from their wives in divorce. But these types of “big money” cases rarely impact the more modest run of the mill cases that pass through the family courts year in year out, where courts are often looking at simply dividing assets to ensure parties needs are met.
These cases are not at the forefront of championing gender equality for men. In these smaller cases, it is unlikely that the courts would award maintenance in favour of the husband, even if the wife is earning significantly more, a decision perhaps not so easily made when it is a man who is the higher earner.
Financial independence should be the goal for both men and women following a divorce. Although there has been a long-standing cultural view held by society and the judiciary that women need greater support, considering the inequalities faced by women in the workplace, mothers seeking employment or struggling to break the gender pay divide.
I do believe that the tide is turning, and the courts are steering away from decisions granting the wife a “meal ticket for life” however a further cultural change in attitude is needed if we are to improve gender equality in the family courts.
“Grandparents are playing an increasingly more important role in their grandchildren’s lives, especially as the cost of childcare pushes parents to rely on informal care from family members.
Since the arrival of my own two young grandchildren, I have increasingly reflected upon the legal position of grandparents’ in relation to their grandchildren and how they are treated by the Court.
Over the last few years, the family courts have started to recognise this important role and the positive impact on the children and wider family.
There is, of course, a mutual benefit in all of this in that grandparents take a lot of pleasure from spending time with their grandchildren and can contribute significantly to their lives. From the grandchildren’s point of view, they will have the benefit of their grandparents’ experience and maturity to help them develop within a wider family support network.
Very strong bonds can be built between grandparents and grandchildren, which, unfortunately, can be jeopardised if the children’s parents separate, whether they are married or simply cohabiting. It is a sad fact that when parents separate, the grandparents’ relationship with their grandchildren can be severely restricted or completely lost.
What can grandparents do legally?
The legal starting point is the Children Act 1989 and the orders the Court can make under the provisions of Section 8.
Unlike a dispute about the arrangements for children between parents, for grandparents to resolve issues through the Court they must first make an application to get permission from the Court before they can proceed
Provided that there has been a close relationship between the grandparents and grandchildren, and that the reason for making the application is genuine, then permission is likely to be granted. Grandparents can then proceed with an application, usually for a Child Arrangements Order, in the same way as a parent would be able to do.
The Court’s primary focus is to make an order that is in the grandchildren’s best interests. In the absence of any welfare or risk issues, and where there has been a close relationship, the Court is likely to make appropriate orders to ensure that the relationship between grandparent and grandchild will continue, notwithstanding the parents’ separation.
I am increasingly asked to advise grandparents about their rights and what can be done when the parents of the grandchildren separate, or fall out, and their relationship with the grandchildren is jeopardised.
It is comforting to know that if this does happen, all is not lost, and the Court will recognise the very significant role grandparents play in the lives of the grandchildren by making appropriate orders which enable them to continue to spend time with them.”
Today, Tuesday 25 June 2019, MPs will consider the ‘Divorce, Dissolution and Separation Bill” at its second reading in the House of Commons.
The current law dates back to 1969 and there have been many significant changes in the intervening 50 years.
Divorce law in England and Wales has been long overdue for reform. Successive governments have resisted such pressure from many different sources, including the Judiciary, family lawyers, those working with families where relationships have broken down and Members of the House of Lords and Members of the House of Commons.
The present government is to be congratulated on carrying through its promise to introduce reform which will spare many families unnecessary distress, grief and anger.
The existing law requires one party to prove to the satisfaction of the Court that their marriage has broken down irretrievably, but they can only do this by relying either upon “fault” (ie adultery or unreasonable behaviour) or upon two years separation with the other person’s consent or five years separation.
The clear majority of petitions that go through the Courts at the moment are “fault-based”, nearly 60%.
Very few divorces are defended. Only last year, the then President of the Family Division, Lord Justice Mumby, calculated that in the year to January 2017, no more than 0.015% of divorces were defended. In other words, we already had divorce by consent.
The Government accept that the law as it is, often requiring one person to blame the other entirely for the breakdown of the marriage, does not serve the interests of society as a whole; does not help family relationships to heal and damages any prospects for couples to reconcile and focus upon the best interests of their children.
Instead, the Government’s view is that the law must deal with the reality that marriages and civil partnerships breakdown, beyond repair, and has to do so with the minimum of acrimony and not exacerbate conflict.
Therefore, the bill now before parliament proposes that:
The requirement to provide evidence of someone’s behaviour or separation will no longer be required.
What will be required is a statement of irretrievable breakdown and that will be treated as conclusive.
It would not be possible for divorce proceedings to be defended.
For the first time, couples can make an application for divorce.
There will be a minimum overall time frame of 6 months (26 weeks).
If the provisions of the Bill become law with the Royal Ascent, it will mark a breakthrough in making a very painful, distressing process, easier for both parties concerned and their children. It will enable them to move on in their lives with dignity, respect and allow them to focus on what is best for their children.
The law in relation to resolving financial issues following separation and divorce remains unaltered.
One issue which the Bill does not need to deal with is the ever-increasing time scale for dealing with undefended divorces now. Despite the introduction some years ago of “divorce centres” to process the paperwork, even undefended divorces are now taking well over a year.
If the changes which the Government proposes are to have real and lasting effects, this indefensible delay needs to be dealt with.
Today the Divorce, Dissolution and Separation Bill has its second reading in the House of Commons (it did not have its second reading on the day after it was introduced, as I was previously led to believe). Ahead of the second reading the Nuffield Foundation, which “funds research, analysis, and student programmes that advance educational opportunity and social well-being across the United Kingdom”, has published a briefing note entitled Divorce, Dissolution and Separation Bill: What does research tell us?.
The note begins with an overview, which I will not go through here (as that is the purpose of this post!). However, the first paragraph of the overview is interesting. It says:
“The Bill represents a pragmatic reform that reflects evidence from the Finding Fault study. The reform will remove the problematic elements of an archaic law and introduce a more transparent, fairer and less harmful process for families undergoing a difficult transition.”
The Finding Fault study was a previous study by the Foundation back in 2017 that looked in great detail at how the divorce law in this country is operating (you can find it here). The study’s findings played a significant role in promoting the reform that the Bill now envisages. What I like about this paragraph is how it very succinctly summarises the Bill and its aims. Yes, it is a pragmatic reform, dealing with the reality of what is actually happening on the ground. And yes, the current law, mired in its ideas of fault, is utterly archaic, and should really have been consigned to history long ago. And lastly, the aims of the Bill could not be better put: to introduce a more transparent, fairer and less harmful process for families undergoing a difficult transition.
The note then looks at what is being proposed in the Bill, and why reform is needed. As to the latter, three problems are identified: what the note calls ‘gaming of the system’, i.e. ‘stretching the truth’ in an adultery or behaviour petition, in order to get the divorce without having to wait for the requisite separation period; creating and exacerbating conflict, which we all know about as the big issue with having to attribute blame for the marriage breakdown; and unfairness to the respondent, who has allegations made against him/her which are not tested by the court, unless they take the expensive (and usually futile) step of defending the divorce.
Then the note gets to surely its main point: what research tells us about the impact of the reform proposed in the Bill. It looks at seven concerns that have been raised about the Bill, and says that the research evidence does provide some clear answers to those concerns, for example, the evidence does not suggest that a change in the law will increase the rate of family breakdown. I was also pleased to note something I have said here many times (including just yesterday): in response to concerns that the proposed six-month period is too short to allow parties to reconcile, the note says: “The evidence shows that most people have thought long and hard before proceeding with a divorce and so reconciliation is uncommon.” Exactly.
The note concludes by playing down what the Bill does. I think many opponents of the Bill will consider that it does something completely radical. However, the note says that it merely “proposes a modest technical change in how irretrievable breakdown is evidenced.” It goes on:
“That change will ensure the law reflects the reality of what happens in practice, where divorce is already available at the request of the parties. The current process involves an often painful, and sometimes destructive, legal ritual involving fault that has no obvious benefits for the parties or for society.”
Well said again. And finally, two important points. Firstly:
“The proposals are entirely consistent with the messages from research and have widespread support from those who know how the system works in practice: including judges and lawyers, and relationship support organisations such as Relate, Marriage Foundation and One Plus One.”
“Importantly, echoing the findings of the Finding Fault research, recent polling by YouGov (9 April 2019) shows that the reforms have the weight of support from the general public as well as those with direct experience of fault divorce.”
Let us hope that these points are borne in mind by all concerned as the Bill progresses through Parliament.
Sweeping cuts to family legal aid funding were ushered in with the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act of 2012. As a direct result, an increasing number of individuals are required (many by necessity) to appear before the courts in person, without the benefit of proper legal advice and representation.
It is, unfortunately, common for one party to be represented by a solicitor or barrister, with the other party representing themselves. A question often asked by the represented party is: how far will the judge go in helping the unrepresented party? The answer, of course, is that it will vary from case to case, depending on the issues involved.
However, the recent Court of Appeal judgment in Crowther v Crowther  EWCA Civ 2698 serves as a useful reminder of the limits of how far a judge should go in assisting a litigant in person in financial remedy proceedings.
The case was initially heard by His Honour Judge Tolson QC in the Oxford Family Court, in a long-running matrimonial proceeding concerning a single issue: the former matrimonial home. The property had been purchased by Mrs Crowther during the marriage from an inheritance she received following the death of her parents. Mrs Crowther’s position was that Mr Crowther should have no interest in the property; it being an asset acquired entirely from her inheritance. Mr Crowther’s position was that it should be sold, and the net proceeds should be divided equally, to enable both parties to re-house.
At the final hearing before Judge Tolson, Mr Crowther was represented by an experienced barrister, whereas Mrs Crowther appeared in person (earlier attempts to secure legal aid funding for Mrs Crowther had been unsuccessful). The Judge obviously recognised the need to try and achieve a fair process, despite one party being represented and the other not.
As part of this process, the Judge asked Mr Crowther a significant number of questions, relating to his ability to live independently. Unfortunately, both parties suffered from mental health problems and were vulnerable, with Mr Crowther also suffering from a physical disability, rendering him wheelchair-bound. Mr Crowther’s case was that if the former matrimonial home was sold and the proceeds divided equally, he would use that money to purchase a one-bedroom property in a nearby town and would live on his own with little to no support.
In giving his judgment at the final hearing, Judge Tolson expressed doubts as to whether Mr Crowther would, in fact, use the sale proceeds to purchase a property for himself and live independently. The Judge also raised concerns as to whether this would meet Mr Crowther’s needs in any event, and the Judge commented that “no share of the property less than 50% would serve any useful function as far as [Mr Crowther] is concerned and, of course, to grant him a sale and the full 50% would not in any way reflect the contribution which [Mrs Crowther] made from her family to the purchase of the property in the first place”. That effectively determined the case and so the judge refused to order a sale or award any of the capital to Mr Crowther.
Perhaps unsurprisingly, Mr Crowther appealed the decision. The appeal was considered substantively by Lord Justice McFarlane (the current President of the Family Division) along with two other appeal judges, Lady Justice Macur and Lord Justice Henderson. The basis of Mr Crowther’s appeal was twofold. Firstly, that the Judge Tolson’s approach to Mrs Crowther’s financial contribution to the former matrimonial home was wrong and, secondly, that the Judge’s questioning of Mr Crowther had introduced the issue of Mr Crowther’s ability to live independently into the case (which was not a point or issue Mrs Crowther had pursued previously) and that it was unfair and improper for the judge to have done so.
Mr Crowther’s barrister highlighted to the Court of Appeal that the earlier judge was required to assist Mrs Crowther by asking questions, as a Judge is permitted to do by Section 31G(6) of the Matrimonial and Family Proceedings Act 1984. However, Mr Crowther’s position was that the judge simply went too far in “taking over the cross-examination and presenting a case about the husband’s ability to live independently, which was simply not part of the wife’s case before the court.”
The Court of Appeal ultimately agreed with Mr Crowther’s barrister and allowed the appeal, directing that it should be sent back to the Family Court for a rehearing. In his judgment, Lord Justice McFarlane was clear not to criticise the Judge Tolson, stating:
“I wish to express my professional sympathy for the judge and indeed any judge in this not uncommon situation where one party is represented by a strong legal team and the other is a litigant in person. The requirement for the court to achieve a fair process by assisting the litigant in person almost inevitably draws the judge into the role of inquisitor, albeit on behalf of the litigant. It is a difficult line to tread…and I wish to be in no way critical of Judge Tolson, who on the day will, I am sure, simply have been doing his best to achieve a fair process for these parties”.
Several points arise from this interesting and difficult case.
Firstly, and perhaps as something of a ‘side’ issue, it reiterates the principle that in cases with modest matrimonial assets, the needs of the parties’ should trump any contributions arguments (that is to say that there should be less focus on which party contributed towards the asset and more focus on whether either or both parties have required that asset, or part of that asset, in order to meet their reasonable needs).
Secondly, the Crowther case serves as a reminder of the difficulties of litigating cases where one party is unrepresented. Whilst there were, fortunately, no concerns raised in this case in respect of Mr Crowther’s legal team, all parties involved in litigation must remain vigilant to avoid taking unfair advantage of a litigant in person.
Finally, the case highlights the enormous difficulty facing all levels of the judiciary when dealing with litigants in person. Notwithstanding the judge’s obligations to assist the litigant in person, as set out in the Matrimonial and Family Proceedings Act 1984, the judge must be very careful indeed not to take their questioning too far and, crucially, not to introduce, whether by accident or by design, arguments which the litigant in person had not originally pursued. The judge must, always, be mindful of both parties’ rights to a fair trial, as guaranteed by Article 6 of the European Convention on Human Rights (ECHR).
As Lord Justice McFarlane carefully pointed out in his judgment, there should be no criticism of the trial judge in this case, who was treading an extremely difficult line. Whilst there is some judicial guidance from the ‘Equal Treatment Bench Book’ and various other sources, the question of whether further resources or training is required bears consideration. We can, of course, only speculate as to whether further resources or training would prevent repeat occurrences of these types of issues, however, it seems unlikely that there will be any ‘quick fix’. This holds particularly true when considering the comments of Lord Justice Ward in the case of Re: R  EWCA Civ 445:
“As more and more parties are forced to appear in person, so judges are frequently required delicately to maintain a level balance to the playing field. Give the litigant in person no help and he will complain: take too active a role and the other side complains. There is no easy way out of that dilemma.”
Given that Lord Justice Ward’s comments were made almost a decade ago, it appears likely that, unfortunately, these types of difficult cases will continue to cause real difficulties for the parties, solicitors, barristers and judges involved in these cases for some time to come.
In conclusion, all represented parties would do well to keep the points raised in the Crowther case high on the agenda when proceeding to a final hearing at which the other party is a litigant in person.
The introduction of the Divorce, Dissolution and Separation Bill has been widely welcomed. Most people who have anything to do with divorce strongly believe that a no-fault system will be beneficial, preventing one party from being trapped in a loveless marriage, and reducing conflict, thereby making it more likely that arrangements for children and finances will be settled amicably.
But the change has not been universally welcomed.
Colin Hart, a Director of The Christian Institute, a charity which exists for “the furtherance and promotion of the Christian religion in the United Kingdom” and “the advancement of education”, has described the Bill as ‘euthanasia for marriage’. That is obviously a serious charge, so I thought I would take a closer look at what he has to say.
Mr Hart is quoted in an article on The Christian Institute website. To see exactly what he has to say, and to be fair to him, I will go through the whole quote, rather than cherry-pick excerpts.
The quote begins by Mr Hart clearly setting out his stall. He says:
“Under Government plans an innocent spouse will not be able to cite adultery or domestic violence in a divorce petition. The no-fault divorce scheme is plainly unjust.”
Unfortunately, Mr Hart is wedded (excuse the pun) to the idea of guilt and innocence in marriage. Thankfully, most of us moved on from this rather archaic concept some years ago. For a start it is actually very rare for the breakdown of a marriage to be entirely the ‘fault’ of one party, even if that party has committed adultery or ‘behaved unreasonably’. But more than that the whole concept of guilt and innocence simply isn’t appropriate within a marriage. Marriage is a joint venture, and if one party wants out, then it is over. There is nothing to be gained by an investigation by the court into the causes of the marriage breakdown.
Mr Hart goes on:
“Couples struggling through a difficult time in their marriage need time and opportunity to reconcile. This legislation seems to block off this possibility.”
I have two things to say about this. Firstly, it assumes that people will rush to court without fully considering whether their marriage has irretrievably broken down. As I have said here many times, my experience over twenty-five years practising as a divorce lawyer was quite clear: very few people commence divorce proceedings without full consideration. The reality is that the marriage is clearly over before the divorce is initiated. Secondly, Mr Hart forgets that the Bill specifically includes a twenty week period for reflection, designed precisely to give the parties an opportunity to reconsider, and possibly reconcile.
The quote continues:
“The Government’s main argument is that fault-based divorces lead to acrimony. If that is so, why is the Government also abolishing separation grounds which never involve any allegation of fault?”
With respect, I think there is a misconception (or two) here. The acrimony point relates to fault-based divorces, i.e. adultery and ‘unreasonable behaviour’. Further, and obviously, the whole scheme of the new system, based upon a statement of irretrievable breakdown, makes the current separation grounds redundant. Why would anyone wait two years, when they can have their divorce in six months?
And Mr Hart’s final point relates to the new timescale. He says:
“Four out of ten divorces are on the basis of separation and take well over two years. Under the Government’s plan it will be six months. A massive speeding up of divorce. It’s also disturbing that the Government has been trialling an online scheme which claims to process divorces in twelve weeks.”
In fact, the divorce process is not being sped up. For many, it will actually take longer. But in any event, if a marriage is over, why force the parties to wait two or, worse still, five years before they can untie the knot and move on with their lives? And the point about online divorce is just plain wrong. Whether the divorce is to be online or not, the new rules as to timescale will apply.
The quote ends with Mr Hart saying:
“This Bill is a euthanasia programme for marriage.”
Again, with respect, that is simply not so. The Bill does not weaken marriage at all. It is already effectively the case that if one party wants out, they can usually get a divorce quite quickly. The only thing that is being euthanased is the necessity to apportion blame. And getting rid of that will inevitably make many divorces less acrimonious, which will surely be for the benefit of all concerned, especially any children.
I should end by saying that, whilst I can’t speak for people of religion, I understand that Mr Hart’s thoughts do not necessarily reflect the views of all Christians. Whether it reflects the views of people of other faiths, I could not say. But even if it does, I would hope that (and without meaning to trivialise strongly held ideas) experience of the new no-fault system will make doubters into believers.