A week in family law: Owens v Owens, Baroness Butler-Sloss and Sir James Munby

Family Law|Industry News | 27 Jul 2018 0

What a week it has been in family law. The judgment on the Owens v Owens case dominated the headlines igniting widespread calls for no-fault divorce. Elsewhere Baroness Butler-Sloss played her part in calling for divorce reform as she introduced a private members’ bill to attempt to force a review of the law on divorce. And finally, Sir James Munby retires after 5 years as the President of the Family Division.

John Bolch joins us to discuss his views on all of the above in his weekly family law review:

As I discussed here, Baroness Butler-Sloss, the former President of the Family Division, has introduced a private members’ bill by which she seeks to force a review of the law on divorce. The Divorce (etc.) Law Review Bill would require the Government to start such a review within six months of the Bill being passed. The Government would then have to report to Parliament upon the conclusions of the review, and of any proposals which it makes. As I explained in my earlier post, the Bill would require the review, in particular, to consider replacing the current law with a system of no-fault divorce, in which the parties would not be required to make any allegations against each other. In view of the increasing calls for the Government to address the issue of divorce reform (see below), the Bill could be a good way for the Government to go about it, obviating the need to draft a Bill of its own, which it may well not have time to do at present. Just a thought.

Meanwhile, there has been bad news for HM Courts & Tribunals Service (‘HMCTS’) from two angles this week. Firstly, the House of Commons Public Accounts Committee has published its report on HMCTS’s £1.2 billion programme to modernise the courts. The report describes the programme as “highly ambitious”, and says that “there is a significant risk that HMCTS will fail to deliver the benefits it expects”. Central to the programme is the idea of reducing the number of courts, and effectively ‘replacing’ them with digital services. However, that idea was criticised by Lady Hale, the President of the Supreme Court, in a speech she gave at the Nuffield Foundation back in May, but which was only reported upon this week. In the speech, she set out a fictitious but ‘not completely unrealistic’ scenario of a woman who was suffering domestic abuse at the hands of her soldier husband, with whom she was living at Catterick Garrison, the largest army base in the country. With no car and no computer, if she wanted a non-molestation order she would have to travel by public transport to her nearest court, Northallerton Magistrates’ Court, 15 miles away. However, if that court closes (as the Ministry of Justice announced this week that it will), then she would have to travel to her next nearest court at Harrogate, which is 40 miles away, with no obvious way to get there. So much for justice…

The big family law story of the week was, of course, the Owens case. In the event it was all so predictable: the Supreme Court reluctantly dismisses the appeal (as the trial judge was applying the law correctly), family lawyers express outrage at the law and call for change, there is a fleeting media frenzy, and nothing actually changes. Well, maybe nothing will change, but it is thought by many that the case will put more pressure upon the Government to introduce a no-fault (or should that be ‘no-conduct’, as Lord Wilson suggested?) divorce system. Indeed, the Ministry of Justice responded to the Supreme Court judgment by tweeting: “The current system of divorce creates unnecessary antagonism in an already difficult situation. We are already looking closely at possible reforms to the system.” Interesting, although whether that is simply a “something must be done, but nothing actually will be done” response, as suggested by some replies to the tweet, only time will tell. What is certain, however, is that Mrs Owens will remain a party to a broken marriage, and therefore not be able to move on in her life, for at least another two years, and that can’t be right.

And finally, the President of the Family Division Sir James Munby retires today, his 70th birthday, after an extremely busy five years in office. Constantly striving to improve the family justice system, he will most certainly be missed and will be a ‘tough act to follow’ for his successor, Sir Andrew McFarlane. I wish him not just a happy birthday, but also a long and fulfilling retirement.

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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