Time for constructive divorce

Family analysis: Nigel Shepherd, national head of family law at Mills & Reeve and national chair of Resolution, explains the reasons behind Resolution’s successful application to intervene in the Supreme Court appeal in Owens v Owens, and plans for the no fault divorce campaign going forward.

Resolution has been given permission to intervene in the Supreme Court appeal in Owens v Owens – what would be your ideal outcome?

Ideally, Mrs Owens would be given her divorce. The reason we believe Resolution succeeded in its application to intervene was that it did not simply call for reform, but argued that the existing law could be interpreted to allow the Supreme Court to overturn the decision of the Court of Appeal. On a fundamental level, whether or not Mrs Owens succeeds on appeal, the campaign for no fault divorce will be bolstered.  If she wins, the fact that she has had to go all the way to the Supreme Court to obtain a divorce is patently nonsensical. The legislation will remain unchanged, fault will still be a basis for divorce and divorces would still be capable of being defended. If Mrs Owens loses her appeal and the marriage is kept alive, when even the trial judge agreed that the marriage had broken down irretrievably, then that would highlight even more starkly the injustice inherent in the current law.

What limitations are there as to the role of the Supreme Court in relation to the existing law and Owens?

At the Four Jurisdictions Family Law Conference 2018, Lady Hale stated the obvious, ie that the courts cannot make law, they can only interpret it. The limitations for the Supreme Court are those of any appeal – that the appeal court would have to find that the decision in the lower court was wrong in law, not just that the appeal court itself would have made a different decision. The judge at first instance in Owens found that he did not believe that the reasons given in the petition were the reasons for the breakdown of the marriage, and it is always difficult to overturn a finding of fact on appeal.  I would anticipate that if the Supreme Court does uphold the Court of Appeal decision, it will take the opportunity to stress the need for the law to be reformed, as did the Court of Appeal in its judgment (Owens v Owens [2017] EWCA Civ 182, [2017] All ER (D) 23 (Apr)).

You have been involved in the campaign for no-fault divorce for many years as both a national committee member and national chair of Resolution – why is this so important? What are the obstacles to reform?

No fault divorce is important because the current system can increase conflict and distress even where the parties want to be constructive. It runs counter to all other government policy, which is to promote a constructive approach on relationship breakdown. The argument was won previously when the Family Law Act 1996 made it onto the statute books, only for it to be shelved many years later for reasons unconnected to the actual  principle of no fault divorce . Reform is now long overdue, and there is no principled argument against it. However, the feel of the argument is now different in that it has been seen that other countries, such as Spain, have introduced no fault divorce and it has worked – the institution of marriage has not been undermined and there has been no increase in the rate of divorce. In my daily work as a practitioner I have seen the problems allegations of fault can cause – by way of example I dealt with a collaborative case where the parties agreed that they wanted to divorce at that stage rather than wait for two years’ separation, and indeed needed to in order to facilitate the making of pension orders. Neither wanted to be the petitioner. When they agreed who would be, and we drafted the behaviour particulars, the proposed respondent was upset by them and we had to change tack and the other became the petitioner.  Having to address this issue caused completely unnecessary distress and upset, and used up valuable time and effort that should have been directed towards reaching an agreement on the wider issues.

Liz Trinder’s report, Finding Fault: Research on the Current Grounds for Divorce is core to this issue, and one of the concerning factors is that post LASPO so many people are representing themselves in family proceedings without even basic legal advice. The current system is an open secret for lawyers – they know that it is usual to draft mild particulars. Litigants in person don’t know this. They also don’t know that the basis of the petition and the particulars make no difference to the outcome in relation to money and children. A litigant in person petitioner may draft pages of particulars when a few short anodyne paragraphs would be enough. Faced with a raft of allegations, respondents may feel they have to defend the petition, and only when they come before a judge will they learn that they didn’t need to.  Just a small amount of advice would steer them in the right direction and avoid delay, cost and the heightening of emotions at an already difficult time for families.

What are the next steps for the Resolution campaign, both now and after the Supreme Court hands down its decision in Owens?

Although the decision in Owens will in some respects define how the campaign proceeds, the need for reform will remain and will continue to be pursued with vigour. A Private Members Bill is a possibility, in the hope that the increasing groundswell behind the call for change will lead to government support, which is nearly always required if we are to get legislation through. There is cross-party support for no fault divorce, and even the Daily Mail has questioned the decision in the Owens case. If the public are asked whether fault should be part of divorce, they may say yes, but when it is explained that the courts in practice cannot investigate allegations and that fault plays no part in the determination of money or children issues, they view it differently. The focus of the campaign will continue to be anchored in the Resolution Code of Practice’s ethos of reducing animosity and encouraging couples to look to the future rather than raking over the past.

Nigel Shepherd is national head of family law at Mills & Reeve and a specialist family lawyer, collaborative practitioner and family arbitrator with over 35 years’ experience, dealing mainly with complex financial issues. He is the current national chair of family lawyer organisation, Resolution. 

Interviewed by Geraldine Morris, solicitor and head of LexisPSL Family.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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