Any judgment mentioning the wonderfully named Sir Cresswell Cresswell, the first ‘Judge Ordinary’ of the Court for Divorce and Matrimonial Causes (more of whom in a moment), has to be noteworthy.
And so it is with the judgment of the President of the Family Division Sir James Munby in Re X (A Child : foreign surrogacy). It is a very short and simple judgment, but it makes two interesting points in relation to applications for a parental order following surrogacy.
The case concerned an application by the parents of a “much-loved child” for a parental order, arising out of a foreign surrogacy. We are told little about the facts, but there were two possible hurdles for the couple to overcome.
Firstly, as regular readers of this blog will know, the applicants for a parental order must be husband and wife, civil partners of each other, or “two persons who are living as partners in an enduring family relationship”. Here, the applicants were a married couple, but the ‘problem’ was that one of them was gay, and their marriage was platonic. It may be recalled that a marriage may be annulled if it has not been consummated – was this a problem for the parental order? No, said Sir James Munby. Referring, amongst others, to Sir Cresswell Cresswell, he said that a sexual relationship is not necessary for there to be a valid marriage. Quite right too.
The second issue was that the law requires that “the child’s home must be with the applicants”, but here the parents did not live together. This, Sir James found, made no difference: “When the child is not with both parents, the child’s time is split between them and their homes. The child does not live with anyone else. I need not go into further detail.”
Accordingly, the parental order was made.
And so to my hero Sir Cresswell Cresswell. In fact, I think he should be the hero of every family lawyer, as he was in a large part responsible for bringing family law into the modern age. I have actually mentioned him here previously, in this post. As referred to above, in 1858 he was appointed the first ‘Judge Ordinary’ of the newly-created Probate, Divorce and Matrimonial Causes Court, which replaced the jurisdiction of the ecclesiastical courts that had previously dealt with divorces. This effectively made him Sir James Munby’s original predecessor as President of the Family Division (from 1875 the then ‘Judge Ordinary’ became the President of the Probate, Divorce and Admiralty Division of the High Court, which in turn became the Family Division in 1971).
As to Sir Cresswell Cresswell’s great achievement in helping the process of modernising family law by making it a civil, rather than ecclesiastical, matter, I will let his entry in the Dictionary of National Biography explain:
“It was by his exertions that the experiment of the divorce court was successful. He reformed the old ecclesiastical rules of evidence in matrimonial causes … A less self-reliant man would have shrunk from the task. The work proved in the first year fifteen times as great as had been anticipated, and was always heavy. He disposed of causes very rapidly and sat daily from November to August; in all he adjudicated upon a thousand cases, and his judgment was but once reversed.”
The reference to the large number of cases related, I think, to the increase in the number of divorce cases after the reform of divorce (a situation echoed a hundred years later by the divorce reforms of the 1960s). Cresswell became highly respected (especially by married women!), and even got a mention in Anthony Trollope’s book Framley Parsonage:
“Mr. Gresham and his wife were supposed by the world to live on the best of terms. They always inhabited the same house, went out together when they did go out, always sat in their respective corners in the family pew, and in their wildest dreams after the happiness of novelty never thought of Sir Cresswell Cresswell.”
…which I understand to mean that they never thought of divorce!
I wonder whether the achievements of Sir James Munby will merit a literary mention?
Actor Russell Crowe has announced an auction of personal possessions and film memorabilia entitled The Art of Divorce.
The New Zealand-born film star recently completed his divorce from Australian singer Danielle Spencer, with whom he has two sons. The just announced auction, to be held by Sotheby’s Australia in Sydney on April 7, will include no less than 223 items, including armour, a sword and a replica Roman chariot from his biggest hit, the 2000 film Gladiator.
The 53 year-old describes the auction as a collaboration with his now ex-wife. “Just as we collaborate on the upbringing of our kids, it’s easy for us to work together on something like this.”
Amongst the items for sale is a diamond ring he bought for Spencer, which the auctioneers estimate could raise as much as £43,000. Crowe now admits the “unbelievably expensive” gift was not very practical as his wife had always been afraid to wear the ring for fear of losing or damaging it. Also for sale are various guitars, a custom-made motorcycle, a collection of Australian art, and a black Mercedes which was used at the couple’s wedding in 2003. The motorcycle is worth roughly ten times as much as the diamond ring.
Crowe told the Sydney Daily Telegraph:
“I think [Danielle] feels the same way I do in regards to just moving on things that help create space for the future.”
The actor and occasional musician added:
“Divorce has its way of making you really examine the things that are essential in life — and the things that are not. Through the process, I had a look around and realised I had a lot of stuff. Career stuff, stuff I’ve collected and stuff in general. Boxes and boxes of stuff . . . so in the spirit of moving forward into fresh air, here’s a portion of that collection of stuff… this collection probably equates to three rooms full of things I’ll no longer have to care for, document, clean, tune and insure.”
Sotheby’s Australia chairman Geoffrey Smith said he expected the auction to bring in between £1.5 million and £2 million.
Sarah Barr-Young is Managing Partner of Stowe Family Law’s Ilkley office. She said:
“The divorce auction is not a new phenomenon – though normally it is one party seeking to raise funds to pay a settlement or realise assets to aid their own financial recovery post-divorce. Generally though they are conducted more discretely. In this case it looks as though Mr Crowe is hoping to take advantage of his public profile to attract more buyers. What’s really interesting here is that the auction is a collaboration between the parties which shows good will post-divorce. However, we’re unlikely to ever know whether the financial settlement Danielle receives is affected in any way by what sum is raised from this sale or whether the sale is required to raise funds for a settlement”.
“That aside, Crowe’s comments are refreshing in reminding divorcing parties to really focus on what matters in a divorce and that the items in the auctions are chattels [possessions], albeit ones collected over many years and vastly different in substance from what the rest of us have at home. Divorce lawyers are extremely mindful of the harm that a row over chattels can do in destabilising a hard negotiated financial settlement. Clearly they see divesting themselves of these possessions as a way to let go of their past and move on with their lives, and that is a very commendable attitude.”
A Scottish advocate has applied to the country’s highest court to have a divorce decree granted to his wife set aside.
Raj Jandoo, 60, was the first person from an Asian background to be become an advocate in the Scottish courts, a role equivalent to barrister south of the border. In 2010 he met his wife via an online dating agency and they eventually married in 2012.
But the couple were together for just months before separating. Eventually, in May 2015, The Times reports, she applied to divorce him using the ‘simplified procedure’. As the name suggests, this is a shorter form of divorce available in Scotland in some circumstances, principally when there are no children below the age of 16; no outstanding financial matters to sort out; and both spouses have ‘capacity’ – the ability to make their own legal decisions.
She was refused by a sheriff but reportedly tried again the following year, while Mr Jandoo was visiting India on an extended holiday. This time her application, at Dunfermline Sheriff Court, was successful the paper reports.
The advocate insists he was entirely unaware of her application and only discovered what had happened when he returned to Scotland.
He explained to the Court of Session that he did not wish to resume his relationship with his former wife but said they had not sorted out the financial issues arising from their marriage.
Complicating matters, said Presiding Judge Lord Woolman, is the fact that Mr Jandoo’s former wife has since remarried, so she would be left in “legal limbo” if his application was granted. He therefore gave the couple three months to reach an agreement between themselves before the next scheduled hearing in May.
The Judge said he sympathised with Mr Jandoo, saying he had experienced “despair, distrust and desolation” following the end of his brief marriage.
Yet again I find myself basing a post upon something I came across on Twitter. Clearly, Twitter is a better source of legal information and debate than I had given it credit…
I also find myself discussing once again the views espoused by The Conservative Woman. As I have professed here previously, I don’t often read this esteemed publication (or is it just a website?). Honestly.
The particular article in said publication is by one Thomas Pascoe (I’m not sure how a man can express the views of the Conservative woman, but I’ll leave that conundrum to one side) and is entitled “To walk away from marriage is to abandon your duty”. Hmm. Not an encouraging start. And it gets worse. Let me repeat the first two paragraphs:
“Few would contest that public debate in Britain has become more barbarous. It has become barbarous in a very specific sense: that a desire to do something is very often presented as the sole possible criterion for action.
“This is the refuge of the savage. Civilisation is based almost entirely on people acting with other things in view than their immediate desires.”
I’m sorry? We are talking about marriage here, aren’t we? Barbarous? Savage? Aren’t we getting just a little carried away?
Ahem. I will happily skip the next few paragraphs of the article and get to my point, where Mr Pascoe says:
“The Times, Suella Fernandes MP and many high-net-worth law firms are currently engaged in a campaign for no-fault divorce, effectively allowing a person to resign from a marriage whenever they feel like it. This is a serious attack on the institution of marriage and would cause deep misery to many families. It should be opposed at every step.”
Where to start with this? I have, of course, previously written here of the recent achievement of the no-fault divorce campaigners, in persuading our new Lord Chancellor to examine the case for reform. Yes, The Times has been running a campaign, and yes, Suella Fernandes has called for reform. However, then Mr Pascoe lets slip his partisanship by only otherwise referring to ‘high-net-worth law firms’, as if the real reason behind the campaign is to increase the number of divorces, and therefore increase the already over-inflated profits of said firms. In fact, the call for no-fault divorce has nothing whatsoever to do with such things. Nor is it dominated by highly paid lawyers – it is supported by family lawyers across the board, from those practising on the High Street, to those practising in some of the most prestigious firms in the country. Mr Pascoe also omits to mention that the real leader of the campaign, for at least the last twenty years, has been Resolution, the association of family lawyers whose ethos is to deal with divorce in a constructive, non-confrontational way.
Moving on, the campaign for no-fault divorce has also never been about “allowing a person to resign from a marriage whenever they feel like it”. It is primarily about reducing conflict in divorce, by removing the unnecessary need to attribute blame for the breakdown of the marriage. Note the words ‘breakdown of the marriage’. As Resolution say:
“Removing blame from divorce will not make it more likely that people will separate. It will simply make it easier for people to manage their separation with as little conflict and stress as possible and reduce the likelihood that they will end up in court.”
The marriage has already broken down by the time divorce proceedings have been instituted. As I have said here many times previously, people do not decide to end their marriages on a whim – they do so after careful consideration. No one is going to decide that their marriage is over simply because the process of divorce has been simplified.
Then we have the ‘attack on the institution of marriage’ argument wheeled out again. No one is attacking the institution of marriage – the calls for no-fault divorce have nothing whatsoever to do with undermining marriage. In fact, I’m sure that many of the advocates for reform would describe themselves as staunch supporters of the institution. Why should making the process of divorce less painful weaken marriage? It just doesn’t make any sense.
Lastly, we come to the ‘divorce causes misery to families’ argument. Well, it can do, but it can also be a positive, freeing the parties, and more importantly their children, from the misery of an unhappy relationship. As has been said elsewhere, a good divorce can be better than a bad marriage for children.
Sadly, The Conservative Woman is not unique in expressing these misguided views. We therefore need to get the message out, not just about what no-fault divorce is about, but also what it is not about: it is not about selfishness, it is not about undermining the institution of marriage, and it will not spell the end of civilisation as we know it!
Going from parenting together to parenting apart is a huge step. It can be a very lonely step and one that throws up all sorts of challenges we did not anticipate.
To help with these challenges I have been working with the very talented Mette Theilmann from Parenting Success. She is a parenting coach with an extensive background in psychology. Her company, Parenting Success, supports mothers and fathers with everyday parenting challenges. They provide one-to-one help as well as delivering help in schools and running workshops. These are on such subjects as ‘parenting tweens and teens’ and ‘managing screen time’. They also run a workshop for parents where one parent has been diagnosed with cancer.
Together Mette and I run both a Separated Mums’ and a Separated Dads’ Group.
I attend our separated parents groups with two roles: as a mum who is divorced from my child’s father but also as a family lawyer with nearly 19 years of experience. Our Separated Mums and Separated Dads groups are fantastic opportunities for parents in a similar position to meet each other. Some of our parents have recently separated, whilst some have been on their own for many years. Some of our parents are relatively amicable with their ex whilst others are in the midst of bitter court proceedings. Some of our parents have older children whilst others have small babies and toddlers. Whatever stage of their lives our Mums and Dads are at, they can find it really helpful to know that someone else is going through the same thing. Some supportive relationships have developed as a result.
At each meeting Mette discusses a relevant topic. At a recent Dads’ Group, the theme was better communication with ex-partners. Mette had some really helpful tools and ideas to make meetings with the other parent less emotional, more productive and more child-focussed. Amongst other things, Mette suggested treating meeting as a business meeting and always having an agenda.
Our first separated Mums’ group of 2018, meanwhile, was entitled ‘Become the best Mum you can be’. We looked at our current parenting styles and discussed the style we aspired to. When a child is suffering because of their parents’ separation there is a risk that we can overindulge them. To counter this Mette took us through what she called the ‘7Rs’:
We need to be a good role model.
We need to have rules to make our children to feel safe.
We need to have routines to make our children feel calmer.
We need to give our children responsibilities so they feel valued and important.
We need to consider our response to them and to listen, understand and accept their feelings.
We need to build on our relationship with our children to make them feel valued.
These groups are all about becoming better parents and more child-focussed. If you feel you would benefit from attending please feel free to get in touch.
Emma Newman is the Managing Partner at Stowe Family Law’s Esher Office.
She is a Resolution Accredited Family Law Specialist with accreditations in Financial Provision and Children’s Law. Throughout her career Emma has acted for clients on all aspects of family law. Her particular area of expertise is dealing with financial disputes and applications to vary maintenance orders.
Having been through a divorce herself Emma is acutely aware of the practical and emotional issues her clients face and is passionate about ensuring her clients are fully supported throughout their legal journey.
Or: The Times successfully undermines marriage even more…
I shall take no credit for it, but it is nevertheless very pleasing to read that the new Lord Chancellor David Gauke is heeding my calls for no-fault divorce. OK, he’s not actually said that the Government will introduce no-fault divorce, just that he will “examine the case for reforming divorce laws that force couples into damaging and false allegations of blame.” Still, that is extremely encouraging, particularly when those of us who have been calling for no-fault divorce for so long have largely been met by complete indifference from successive governments.
The news was announced in an article in The Times, which has apparently been running a campaign for family law reform, including the introduction of no-fault divorce, from behind its paywall. The article says that Mr Gauke acknowledges the strength of feeling on the issue of no-fault divorce, and will study the evidence for change, although he cautioned that he would not “rush to a conclusion”.
As one might expect, the news was greeted with pretty much universal approval from family lawyers. On Twitter, Philip Marshall QC, who is representing Tini Owens on her appeal to the Supreme Court, simply responded with the hashtag: #hurrah, followed by two exclamation marks.
Quite. And Mr Gauke’s predecessor Lord Mackay of Clashfern, another campaigner for no-fault divorce, is quoted by The Times as saying:
“I am delighted that the new Lord Chancellor has indicated that he will look at the evidence for change. It is now over 20 years since parliament, by a large majority in the House of Commons, passed a bill removing the need for making allegations of fault in order to obtain a divorce reasonably quickly.”
He is referring, of course, to the ill-fated Family Law Act 1996, which included provisions for the introduction of no-fault divorce. Those provisions were never implemented, and that part of the Act was finally repealed by the Children and Families Act 2014. Sir Paul Coleridge, chairman of the Marriage Foundation, describes the Government’s failure to put in place an alternative to the 1996 Act 21 years on as “both pusillanimous and a total abrogation of duty.” For once, I find myself agreeing with him.
Of course, not everyone is happy with this news. The sub-heading to this post comes from a comment to the article in The Times, coincidentally written by someone who calls himself ‘John B’. The comment went on:
“…well done Times you must be really proud of yourselves for ending the anarchic concept of marriage where people commit to responsibility and raise a family in a stable environment.
Look at the utopia of mass divorce and fatherless children on the horizon.”
Wow. I’m not going to comment here on the merits of marriage and the effects of divorce on children (save to say that some children are, of course, far better off away from the possibly toxic environment of a broken marriage), but I really don’t see why the introduction of no-fault divorce should either spell the end of the institution of marriage, or (in the long run) lead to more divorces. All this is about is making it easier, quicker, and less acrimonious to bring an end to a marriage that has already broken down. OK, there may be more divorces initially if people like Tini Owens are not made to wait five years for their divorce, but that spike will soon even out.
Another commenter suggested that Mr Gauke does not have the best track record when it comes to reform. I don’t know about that, but clearly we must not get too carried away by this news. There is still a very long way to go before we actually get no-fault divorce: the Government may decide not to bother after all, and if it does decide to proceed there is then the question of precisely what form the new law will take – hopefully not like the Family Law Act 1996, as suggested by yet another commenter to The Times article: that was awful, and quite unworkable. I recall once attending a seminar on the Act during which the speaker, a well-respected family law expert, confessed that he did not understand how the provisions of the Act were intended to work.
Still, at least now there is hope.
Photo of David Gauke by Policy Exchange via Flickr under a Creative Commons licence
A total of 4,162 couples applied for divorce in the Republic of Ireland during 2016, according to new figures from the Irish Courts Service.
The figure represents a drop of 128 since the previous year. Meanwhile, 3,197 divorces were finalised across the country. Although modest, these figures reflect the fact that the Republic has a population of just 4.7 million. Of those, just under 1,800,000 are married adults. Ireland’s divorce rate is also historically low by international standards, reflecting its Catholic heritage.
Dublin accounted for around a quarter of all divorce applications and approximately a third of all the completed divorces. Meanwhile, Ireland’s least populous county, the border region of Leitrim, accounted for just 17 applications, The Irish Times reports.
An additional 1,300 applications for separation were made over the same year. Meanwhile there were 32 applications for ‘nullity’: an invitation to the family court to find that a legally valid marriage never took place. Just under half were granted. Under Irish law, nullity can be declared if it is it is shown that one party is sexually impotent, did not properly consent to the marriage or was unable to consent.
The government has extended an online divorce pilot to allow users to make fully digital divorce applications.
The pilot scheme, launched last year, initially required users to print off the divorce application form and then post this to the nearest family court serving as a ‘divorce centre’. Now users can submit the form online, as well as supporting documents, and also pay the accompanying fees.
More than 130 fully online applications have already been made.
Susan Acland-Hood is the Chief Executive of Her Majesty’s Courts and Tribunals Service (HMCTS). She explained the benefits already seen by family court officials.
“These measures are drastically cutting the number of applications returned because of errors – streamlining the process and ensuring we are best supporting people going through a difficult and often painful time.”
A further development of the system will allow solicitors to participate.
Rightly or wrongly, I’ve always had the impression that the Bailiwick of Jersey is quite a conservative place, resistant to change. For example, they still technically had the death penalty until 2006, and birching was still practised on Jersey long after it was abolished over here. It is therefore slightly ironic that Jersey is now leading the way on reform of its divorce laws, with the introduction of no-fault divorce being high on the agenda, whilst here on the mainland no-fault divorce seems as far away as ever.
Of course, the urgency of reform depends upon the nature of the existing law. I have therefore had a quick look at the current divorce law in Jersey, and it is quite interesting – very similar to our present law, but also with significant differences. In some instances it is more conservative than our law, but in others it is already more liberal.
The first point to make is that there is a bar on issuing a divorce petition in Jersey within three years of the date of the marriage. This is actually the same as when our law was originally drafted – it was only in 1984 that our parliament reduced the period to one year.
Then there are seven grounds upon which a petition for divorce may be presented in Jersey:
That the respondent has committed adultery.
That the respondent has deserted the petitioner for a period of two years.
That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them.
That the respondent “is incurably of unsound mind and has been continuously under care and treatment for a period of at least 5 years immediately preceding the presentation of the petition”.
That the respondent is serving a sentence of imprisonment for life or for a term of not less than 15 years.
That the parties have been separated for one year and the respondent consents to a divorce.
Two years’ separation, with no consent required.
Thus we have our five ‘grounds’ reproduced at paragraphs 1, 2, 3, 6 and 7, with the difference that the separation grounds are reduced from our two and five years to just one and two years – far more sensible. On the other hand, paragraphs 4 and 5 seem quite archaic (the current divorce law in Jersey was formulated back in 1949), belonging to a different era completely.
The government of Jersey, concerned about the adversarial nature of its current divorce system, is asking islanders for their views on a number of issues, including the following:
Whether the three year rule should change: well, if we realised back in 1984 that this was an unnecessary restriction upon the ‘right’ to divorce, I’m sure the good people of Jersey will be sensible enough to see things the same way now. In fact, I’m not even sure of the need for any period of time to elapse before divorce – if the marriage is over, it’s over, and having to wait to get divorced seems pretty pointless to me.
Whether there should be a no-fault divorce system, in which you can file for divorce without having to prove that your husband or wife was at fault. Yes!
Here’s an interesting one: whether the parties should be able to file for divorce jointly. My answer to that would be: why on Earth not?
Lastly, the non-sequitur: whether ‘compulsory mediation’ should be introduced, ‘forcing’ parties to try to sort out their divorce settlement via mediation. As I’m sure I’ve said here previously, you can lead a horse to water, but you can’t make it drink. Mediation, by its very nature, is voluntary – compulsory mediation is therefore a nonsense. If a party doesn’t want to mediate, then the process is a complete waste of time. In any event, the vast majority of cases (about 90%) are resolved by agreement anyway, so the issue of contested settlements is not as big as many believe. Mediation may help with the 90%, but it will do little for the 10%.
OK, so I don’t agree with everything that’s being suggested. However, the basic point is this: the Jersey government agreed back in 2015 that reform of their divorce laws was long overdue. Now they are doing something about it.
Meanwhile, here on the mainland…
Photo of Jersey Airport by Man vyi via Wikipedia under a Creative Commons licence
As someone who is approaching the tenth anniversary of joining Twitter (I really should get a life), I suppose I understand better than most the limitations of the platform for delivering serious subject-matter. Even with the recent doubling of the character count, tweets are inevitably superficial, giving information with no detail and no background, so that they need to be taken with a large pinch of salt. There is no disrespect intended to tweeters here – this is just the reality of Twitter.
Thus when on Saturday I came across a tweet from a family lawyer that appeared to cause eyebrows to rise amongst far more learned lawyers than me, though there was no disturbance on my particular forehead. Said tweet was one of those efforts at ‘live-tweeting’ from an event that we see so frequently nowadays – well-meaning, but inevitably of limited informational value, due to those very limitations of Twitter. This particular event was the Four Jurisdictions Family Law Conference 2018, which took place in Dublin over the weekend. Topping the bill was none other than our own Lady Hale, recently installed as the first female President of the Supreme Court, who gave the opening address to the conference.
The offending tweet relayed to the world a gem that fell from the Baroness’s mouth. It read:
“Supreme Court does not have the function to make legislation for no fault divorce says Lady Hale at four jurisdictions family conference ahead of the Owens hearing”
OK, for the benefit of those who have not been following the Owens saga, this is the case of the wife who has been denied a divorce, as the court held that she had not proved that her husband had behaved in such a way that she could not reasonably be expected to live with him, as required by the law in cases in which the petitioner alleges ‘unreasonable behaviour’.
As the tweet indicated, Mrs Owens has taken her appeal against that decision to the Supreme Court. I understand that the appeal is due to be heard on the 17th of May, although for some reason the case still does not appear on the list of current cases on the Supreme Court website.
At least two very well respected lawyers expressed their surprise at the tweet. Both of them queried whether it was wise for Lady Hale to make a comment like this at this time.
Now, no serious lawyer is suggesting that Lady Hale has pre-judged the Owens appeal, but I can see that it would be quite easy for a layperson to come to this opinion. The case is very closely linked with the argument for no-fault divorce, and indeed it has been taken up by the supporters of a no-fault system as a classic example of the need for reform of our divorce laws, even though Mrs Owens and her lawyers are not arguing that the current law is wrong (they are instead arguing that it has been wrongly applied).
The legal reality of Lady Hale’s comment, as has also been pointed out on Twitter, is that she is of course entirely correct. It is not the duty, or within the power, of the Supreme Court (or indeed any court) to change the law on divorce. That is quite clearly the responsibility of Parliament. Whatever the Supreme Court decides on the Owens appeal, it will not have the effect of bringing in a system of no-fault divorce.
But still, if distinguished lawyers feel that perhaps it might have been best for Lady Hale to keep her own counsel on the subject of no-fault divorce until after the judgment of her court has been handed down, then that in itself is noteworthy. As anyone whose opinion is likely to be sought-after should know, these things are open to misinterpretation. Clearly, the safest course would have been to remain tight-lipped. After all, we don’t want the mainstream media to get the idea that the highest court in the land pre-judges cases.
The full version of Lady Hale’s speech may well be published in the coming days. At least then we will all be able to see exactly what she said, without having to view it through the prism of Twitter. Meanwhile, for my own part, I am quite cool about what she reportedly said – it was just a statement of fact, perhaps intended to dampen down expectations in some quarters. The Owens appeal has not already been decided.