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Family Division President calls for no fault divorce

No fault divorce would help women who are “trapped in a loveless marriage”, the President of the Family Division has claimed.

Speaking to the Edinburgh Law School earlier this week, Sir James Munby referred to the contentious case of Owens v Owens, in which a woman in her 60s was refused a divorce from her husband because she was unable to demonstrate to a sufficient legal standard that her marriage had really broken down. She appealed unsuccessfully and Mrs Owens’ case has since gone to the Supreme Court, which is due to consider the facts in May.

Sir James Munby, who is due to retire later this year, presided over the Court of Appeal hearing. He told law students that Mrs Owens had been unsuccessful because, while she had “with some justification, considered herself trapped in a loveless marriage”, she nevertheless “had failed to establish any ‘ground’ upon which she was entitled to a decree [of divorce]; specifically because, to use the convenient short-hand expression, she had failed to establish ‘unreasonable behaviour’ on the part of her husband.”

This case meant, he insisted, that the law was “very badly in need of reform”.

Speaking at the same event, the President also suggested that family law had a Victorian notion of marriage for too long and was still marred by “hypocrisy and lack of intellectual honesty”. Meanwhile, women were “condemned to injustice” by the current lack of legal rights for cohabiting couples.

The 69 year-old declared:

“Past judicial utterances we now find almost absurd should serve as a terrible warning of how history will, in due course, come to judge the present generation.”

Lawyer Jill Kirky of the Centre for Policy Studies said the speech was “highly political”, insisting:

“He should step down.’

The full speech is available here.

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. Stitchedup says:

    Munby has simply demonstrated how out of touch he is. Cohabitation is a lifestyle choice and the family courts have no right to meddle in the lifestyle choices of unmarried couples…. Stay out of it.. It’s none of your bloody business!!!! Women have every opportunity to make a career for themselves, being a housewife again is a lifestyle choice few can afford these days so cut the crap and keep with the times!!

  2. Stitchedup says:

    Some thoughts on no fault divorce.

    Firstly, no fault divorce should mean no penalties. So, no spousal maintenance, no pension sharing, no stripping of assets, no constructive trusts etc etc. 50:50 custody of children so no child maintenance, you pay for the time you have with the kids and split the cost of essentials, i.e. Clothing etc 50:50. No grabbing the family hone, each person walks away with what they’ve put in financially and makes their own way in life. No fault, no penalties!!!

  3. spinner says:

    As the President of the family law division Sir James Munby also said in his speech in Edinburgh.

    “the law was marked by ‘hypocrisy and lack of intellectual honesty’” – Agreed

    “people would one day laugh at the idea that a man had to support his ex-wife for life” – Agreed but realistically they laugh at English family law now because it’s so out of touch with modern life.

    An interesting speech by the President that goes into the reasons why this situation developed, none of which are applicable nowadays.

    • Spike Robinson says:

      Exactly. English Family Law is already the laughing stock of the world – and the feeding trough of the world’s jurisdiction-shoppers. Its judgements are a shock and moral outrage to the modern values standards even of the English themselves, who are generally unaware of the twisted anachronistic injustices and unethical illogic of the effects it produces, unless and until they are personally on the receiving end of this sanctimonious, runaway headless chicken, life-destroying machine.

  4. Spike Robinson says:

    James Munby is absolutely correct about the Victorian assumptions, hypocrisy, and intellectual dishonesty at the root of the family law. Bravo! And I do really wonder what the Centre for Policy Studies found so objectionable and “political”. And how ridiculous calling for Munby to “step down” in response to what is simply the latest in a series of incredibly candid “swan songs” by the President. Munby has called out the unpleasant plain truth. Is that what the Centre for Policy Studies finds so unpalatable?

  5. Spike Robinson says:

    Munby is absolutely right that finding fault and apportioning blame needs to be removed from the divorce process. Not least because it is a pure charade, and has been for decades, and yet is a charade that can do actual serious harm, worsening relations at a critical time, cementing the destruction of marriages that might well have healed and been reconciled if not for the legal necessity of bringing out dirty laundry – or fabricating it – in what is (emotionally and practically if not legally) the public sphere.

    There is no need, and no place, for blaming and shaming. It is pointless and counterproductive. And beginning a divorce with court-sanctioned hypocrisy, lying under oath to a judge and barristers who nod and wink and looks the other way – exactly as this very principled lady refused to do (despite the strenuous urging of her lawyers and counsel, no doubt) – sets an incredibly poor precedent and tone for what is for most normal people their first and last involvement with the court system: the system itself encourages them, close to *requires* them, to lie and purjure themselves from the outset. I was advised by multiple law firms and counsel to make something up, an agreed lie by both parties, to avoid rancour from raising real issues. What a great alternative: exchange dirty laundry in public for no purpose, or purjure your first statements to the court, again for no purpose.

    As Munby rightly says, total hypocrisy and intellectual dishonesty. While I don’t think it is anything like the most egregious problem with the family court system, I totally sympathise with Munby who has had to swallow this dishonesty and hypocrisy, and worse, has had to be the enforcer of it, every working day. I pity him and in his shoes I would be equally disgusted (and he is probably disgusted with himself as well as his profession – judges, barristers and lawyers alike).

    • spinner says:

      Imagine having spent your life working in a system that you yourself know to be a dishonest joke. I understand some family lawyers earn good money as compensation but a lot don’t so it must be very disheartening and depressing for them.
      Maybe this is why the President of the family law decided just before retirement to explain why family law had become such a dishonest joke and then put forward some fairly reasonable suggestions on how to go about fixing it.

  6. Andrew says:

    Divorce should be no fault and administrative. The Registrar of Births, Marriages, Divorces and Deaths!

    Then of course the courts’ attention would be reserved for the questions of money and the children. And reforming the law there will be a rather bigger challenge!

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