Brexit, divorce and more

Family Law|March 24th 2017


The High Court has held that a ten year old boy, who has been brought up as a Muslim, must attend an Islamic faith school in London, despite his father’s objections. The father described himself as an “Anglo-Saxon” atheist, said he wanted his son to have a secular education.  His ex-wife, who is Muslim, had chosen a private Islamic boys’ school for her son, but the father described the institution a “school inside a mosque” and claimed he would be “marginalised” by his son if he were to attend the school. The dispute went before the family court, which decided in favour of the mother. The father appealed, but Mr Justice Baker rejected his appeal. The man’s barrister said it was likely that similar cases would appear increasingly often in family courts. That is true, although of course it would not be if we had a secular education system for all children.

A report looking at the effect of Brexit upon access to justice for families, individuals and businesses has been published by the House of Lords EU Justice Sub-Committee. The report found that the current system for civil justice cooperation across the EU member states works well, with disputes that cross borders, whether family or commercial, currently being settled by judgments that are enforceable across the EU. However the Committee found that as Brexit takes effect unless the current system of ‘mutual recognition’ of judgments across the EU is duplicated there will be real hardship for families and businesses, who could be left subject to national rules across 27 other member states. They therefore recommend that alternatives to the existing framework of civil justice cooperation must be in place before the UK’s withdrawal is completed. Let us hope that they are.

Figures revealed by the BBC’s Victoria Derbyshire programme show that there is a backlog of more than £3.8 billion in uncollected child maintenance payments, which has built up over 23 years, with about 1.2 million people owed child maintenance arrears. The figures show that the vast majority of unpaid maintenance was accumulated under the old child support schemes, which were run by the Child Support Agency. A new scheme was introduced in 2012, which is run by the Child Maintenance Service (CMS). However, a further £93 million of unpaid child maintenance has already accrued under the new scheme. I’m not sure that any of this is really news, but it’s useful for the public to be reminded about it, particularly as the findings of a Work and Pensions Committee inquiry into CMS are due to be published next week.

Today the Court of Appeal handed down its judgment in the Owens divorce case. For the benefit of those who have not been following, Mrs Owens was appealing against the judge’s refusal to grant her a divorce, despite finding that her marriage had irretrievably broken down. The reason for the refusal was that the divorce was issued on the basis of what is generally referred to as ‘unreasonable behaviour’, and the judge found that the allegations about her husband that Mrs Owens put forward were insufficient to amount to unreasonable behaviour. Sadly, the Court of Appeal has done what I feared, and what we obviously cannot complain about: upheld the letter of the law, despite the fact that this leaves Mrs Owens in what her barrister described as “a wretched predicament”, locked by the law into a loveless and desperately unhappy marriage. I really fail to see how this situation can benefit anyone, and that includes the husband in this case, who remains married in name only, but nothing else. It also brings the law itself into disrepute. I just hope that there is at least one upside to this unnecessary tragedy: that it makes the government realise the necessity of reform via the introduction of a no-fault divorce system.

And finally, a salutary tale. When your divorce dispute has lasted six times longer than your marriage, then you know it must be time to settle. For their own sake, one hopes that the couple in this particular case heed the advice to that effect from Mr Justice Baker.

Have a good weekend.

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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