John Bolch on relentless litigation in family law

Family Law | 17 Nov 2014 5

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I have commented here on a number of occasions about the endless litigation that some divorcing or separating couples seem intent upon pursuing, oblivious to the costs or the effects upon themselves or their children – see, for example, this post from August or this post from last month.

A judgment containing a particularly futile example of endless litigation was published last week. Lindner v Rawlins concerned a couple who were involved in contested divorce proceedings, having also been involved in contested proceedings regarding the arrangements for their two children.

I don’t need to go into all of the details, but briefly, the husband had issued a divorce petition, alleging unreasonable behaviour by the wife. The wife defended the petition and filed her own petition alleging that the husband had behaved unreasonably.

In the proceedings relating to the children the judge made findings of violence against the husband, which supported the wife’s divorce petition. The husband made a complaint to the Office of Judicial Complaints, alleging bias on behalf of the judge and also applying for permission to appeal against the judge’s findings. Both his bias complaint and his permission application were dismissed.

The husband then sought an order for disclosure against various third parties, seeking evidence from them that he believed would assist him in proving the allegations of unreasonable behaviour contained in his divorce petition. The judge refused to order the third parties to make disclosure.

The husband then applied for permission to appeal against the judge’s refusal, and that is what the judgment here related to. In the Court of Appeal Lady Justice King granted the husband permission to appeal in relation to the refusal to order disclosure against one of the third parties, but not the refusal to order disclosure against the other third parties. However, it is to the last paragraph of Lady Justice King’s judgment that I want to draw attention. She said:

“Having dealt with the matter before me … I would simply say what no doubt other judges have said to this couple on innumerable occasions. This marriage is over and there will be a divorce. Precious family resources are being spent on this contested divorce and one can only guess at the effect on the children of the relentless litigation between their parents. One can only hope that even now they may reach some sort of compromise which allows the divorce to proceed without an appeal and then a subsequent trial.”

Whilst the husband may consider that this particular application was at least a partial success, what has it really achieved? The simple fact of the matter is that this marriage has quite obviously long since broken down irretrievably, and arguing over the reasons for the breakdown or trying to attribute blame for it is going to achieve precisely nothing. Quite clearly, the best thing for all involved is for the divorce to be concluded as quickly and as amicably as possible, and for the parties to move on.

Of course, if we had a system whereby you didn’t have to attribute fault for the breakdown of the marriage, then the parties would not have the opportunity to embark upon fruitless blame exercises. However, it seems that we are as far away from no-fault divorce in this country as ever.

It is, of course, perfectly understandable that feelings may run high when a relationship breaks down, and the desire for ‘revenge’ is only natural. However, that temptation must be resisted (allowing a little time for the dust to settle after a breakdown may be helpful), as the consequences can be devastating for all concerned, especially the children.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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    1. Andrew says:

      Shades of Grenfell -v- Grenfell in the early Seventies. Writing here from memory. Husband’s five-year petition. Wife resists because it would cause grave financial or other hardship – but then cross-petitions!

      She claimed that it was grave other hardship to be divorced except for cause but the court found that five-year divorce was part of the law and she would have to live with it. She also complained that if the husband remarried and had further children they would share in his father’s or mother’s, I forget which, will trusts which, in those days, were confined to “legitimate” issue. The court found that since the possibility of him remarrying was implicit in her cross-petitioning that line of argument also failed.

      All absurd. Divorce should be administrative. And now that we have pension sharing there should be no defence of “grave financial hardship” – and as for “grave other hardship” that is and always was nonsense. If you believe that marriage is for life and don’t want to re-marry in your ex’s lifetime – don’t.

    2. Stitchedup says:

      What seems to have gone over peoples heads here is that “in the proceedings relating to the children the judge made findings of violence against the husband, which supported the wife’s divorce petition”.

      Put yourself in the position of the husband, if the “findings” which are often called “facts” were based on lies and gross exaggerations, the husband will, understandably, be livid and will most likely do what ever it takes to clear his name. Any allegations of violence, particularly when related to children, should have to meet the criminal burden of proof simply because the stigma of being labelled a violent abuser is so great. Reputations and indeed careers can be destroyed. As I’ve said before, “fact finding” based on “the balance of probability” is an oxymoron.

    3. Nordic says:

      All this demonstrates is that English family “law” completely fails to protect the parties and their children against such terrible outcomes. While judges, lawyers and family law bloggers shake their heads in pretend despair, it is their litigious and confrontative system which enables and stimulates such disasters. As you said yourself, John, emotions often run high during divorces. With that recognition in mind, surely we can agree that the system should be designed to limit litigation and confrontation, not least to protect the children. Instead, our system stokes the fire at every opportunity while racking in the fees and, when confronted with the predictable horrific outcomes, turns around and blames the parties for the (burn) wounds in a final insult.
      John, rather than more of these hand-wringing blogs full of faux concern, why don’t you instead write about how, for example, the Nordic family law systems operate. The contrast would be eye opening for many of your readers.

    4. Yvie says:

      I couldn’t agree more with you Nordic. So many professionals within the family court system must be fully aware of the injustices done to children through conflict between the parents yet they do nothing to reduce it. In fact, as you quite rightly say, some would prefer to fan the flames.

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