Baroness Hale, the deputy president of the Supreme Court, is a personal hero of mine. A Yorkshire woman like myself, this distinguished former barrister is – to date – the only woman to have reached the topmost tiers of the legal system. She became the first female ‘Lord of Appeal in Ordinary’ in 2004, when the House of Lords still functioned as the final court of appeal in England and Wales. She then moved over to the Supreme Court of the United Kingdom when it was established in 2011 to take on that judicial function, and Lady Hale became its Deputy President just two years later. She is still the only female Justice.
In addition to her background as a judge and barrister, Her Ladyship spent many years working as a legal scholar and she seems to have maintained a keen interest in legal systems and structure. In a new interview with veteran Times legal correspondent Frances Gibb for example, Lady Hale reiterates her belief in the need for ‘no fault’ divorce in this country. In a number of other countries, it is possible to petition for divorce without citing a specific reason or demonstrating a specific wrong, such as, for example, adultery. It is generally believed that this helps to minimise rancour between the divorcing spouses because no one, legally at least, gets the blame for the breakdown of the marriage. Australia, Canada, Spain, Sweden, the United States, Russia and even China all offer their citizens no fault divorce.
But not England and Wales. Proposals have been made and discussed many times – as Frances Gibb notes, Lady Hale herself proposed its introduction almost 20 years ago during her stint at the Law Commission, only to have the idea torpedoed by “an alliance of Tory MPs and the media” on the grounds that the change could undermine the institution of marriage.
Two decades on, it is still necessary to cite a reason when filing for divorce in this country. One of five facts must be demonstrated in order to establish the “irretrievable breakdown” of the marriage: namely adultery, unreasonable behaviour, desertion for two years, separation for two years with consent, or separation for five years without consent.
Of those five facts, all but one (two years’ separation with consent) are clear attributions of blame.
Despite the furore back in the 1996, Lady Hale has never lost her belief in no fault divorce. She raised the topic in an interview with the Evening Standard last year, and she has returned to the topic when speaking to The Times.
“Our recommendations were perfectly straightforward and simple: the government introduced complications so that what was eventually enacted [drafted] no one thought workable. I am sure we should look [at the proposals] again.”
It is clear from the interview that Lady Hale no longer feels, as a senior judge, that she is the right person to spearhead reform. To quote Frances Gibb:
“…as any judge, she sees her job as applying the law and is wary of politics.”
Times have changed in recent decades. Seemingly fundamental institutions like marriage are questioned these days like never before: the number of cohabiting couples is continuing to rise relentlessly and gay marriage, once a shockingly radical innovation, is now both legal and commonplace.
Personally, I would want to place some question marks against the Baroness’ views. How long would people have to wait before a no fault divorce was granted? Six months? Twelve months? Twenty-four months?
She believes that financial settlements should be resolved before a divorce is granted – but how long will that delay the issue? It is not reasonable to leave people in limbo for lengthy periods when a marriage has, to use the legal terminology, irretrievably broken down.
No fault divorce is fine but the devil is in the detail.
Read the full interview with Lady Hale here.