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Has Lady Hale already decided the Owens appeal?

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.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Andrew says:

    She is the President of the Court and should now allocate this case to a panel which does not include her.

  2. Spike Robinson says:

    Honestly in all this discussion of Owens, Jersey etc on no-fault divorce, I don’t see it as that important to fix. There are well established deceptions that all lawyers are well versed in coaching parties in, and judges turn a studied blind eye. It’s unseemly but it amounts to a de-facto no fault system. I doubt it increases costs. It may raise the temper unnecessarily in cases where both parties fail to understand that the “fault” aspect is a meaningless charade. At the end of the day the finding of “fault” has no bearing whatsoever on the objective outcome. It is de facto no-fault divorce. Whereas there are many, many aspects of the Family Law system that do great objective harm. Those should be the priority, rather than tidying up a minor inconvenience.

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