A week in family law: Sharia law review, divorce errors and more

Family Law|Industry News|June 3rd 2016

It may have been a short week with the bank holiday, but there has been no shortage of family law news:

A survey carried out by the market research company Ipsos MORI indicates that two thirds of domestic abuse victims are unaware that they are eligible for legal aid. The survey, of 8,912 people in England and Wales, found that 20 per cent of domestic violence victims thought they could not access legal aid and that 47 per cent did not know they could. Commenting on the survey’s findings, Jonathan Smithers, the President of the Law Society said: “This impacts on the most vulnerable in our society who may find themselves trapped in violent relationships.” Quite. Clearly, more needs to be done to raise awareness of the availability of legal aid for domestic violence, in order to protect victims.

An independent review into the application of Sharia Law in England and Wales has been launched by the Home Secretary Theresa May. The review will be chaired by Professor Mona Siddiqui of the School of Divinity at Edinburgh University, and is expected to be completed next year. It has been set up in response to evidence that some Sharia councils may be working in a discriminatory and unacceptable way, seeking to legitimise forced marriage and issuing divorces that are unfair to women. Theresa May said: “A number of women have reportedly been victims of what appear to be discriminatory decisions taken by Sharia councils, and that is a significant concern. There is only one rule of law in our country, which provides rights and security for every citizen. Professor Siddiqui, supported by a panel with a strong balance of academic, religious and legal expertise, will help us better understand whether and the extent to which Sharia law is being misused or exploited and make recommendations to the government on how to address this.” Let us hope that the review ensures that all are treated equally, and in accordance with the law, as established by parliament and the courts.

In an interesting Court of Appeal judgment a husband has been allowed to challenge the validity of his late mother-in-law’s will. As part of their divorce settlement the parties agreed that if the wife were to inherit more than £100,000 from her mother’s estate, she would keep the £100,000 and the balance would be divided equally between the husband and herself. On her death, the wife’s mother left £100,000 to the wife in her will and the balance of her estate, estimated at £150,000, to the wife’s children. The husband alleged that the will had not been properly executed, and brought a probate claim to challenge its validity. Initially the claim was refused, on the basis that the husband did have a sufficient interest in the will, and therefore no standing to bring the claim. However, the Court of Appeal held that he did have a sufficient interest in the will, and that justice required him to be able to bring his claim. This must surely be right – the validity of the will must be tested, as the wife cannot be allowed to defeat the husband’s entitlement by taking advantage of a will that was invalid. Having said that, I would not recommend anyone in the husband’s position to enter such an agreement, as a testator of course has freedom to leave their estate as they wish, via a valid will.

Resolution, the association of family lawyers, has revealed the ten most common reasons for divorce petitions being returned by divorce centres. Last year HM Courts & Tribunals Service said that about 40 per cent of petitions had to be returned for correction. I have to say that most of the reasons are the old classics, such as omitting the fee or a document, or that the details of the marriage on the petition did not match the marriage certificate (often caused by a subsequent change of name, or an error on the certificate which the petitioner has failed to explain). Unfortunately, Resolution does not say how many of the errors were committed by solicitors, and how many by litigants in person. I suspect, for example, that litigants in person can find some things difficult, such as completing the jurisdiction page and filling in the statement of case.

Have a good weekend.

Author: John Bolch

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.

Comments(2)

  1. spinner says:

    Given the overwhelming anti male bias in English family courts I’m actually starting to warm to the idea of Sharia courts in England.
    If they were given parity with English family courts at least we would have the balance of the two extremes of a pro female English Family court and pro male Sharia court.

    • JamesB says:

      I agree with you on that Spinner. I am backing Sharia and Beth Din and Priests et al officiating and enabling family settlements. in the UK also until the bad laws and courts you mention change.

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