What family lawyers were talking about this week… by John Bolch

A fair amount, actually, particularly considering that it’s the last week before Xmas.

Last weekend brought the news that a new analysis of official divorce figures, dating back 40 years, has shown “a dramatic rise in the number of separations in which “unreasonable behaviour” by women has been recognised by the courts as the main cause”. Now, contrary to the headlines, I’m not sure that this demonstrates that wives are behaving any more badly now than they were 40 years ago. Instead, it is just that slightly more husbands are instigating divorce proceedings, and more are citing unreasonable behaviour, rather than adultery. Certainly, that seems to be the case from the last bulletin I can find on the subject from the Office for National Statistics, for 2011. It should also be pointed out that it is still the case that the vast majority of divorces are instigated by the wife, not the husband.

More research created another story: that the English courts award more generous divorce settlements than elsewhere. The reason given is that the English courts have more flexibility in granting settlements than courts in other countries.  This is little more than a re-hash of something that has been stated on many occasions, usually along the lines of London being the divorce capital of the world. Of course, such a matter is only of importance if you are able to choose where you want your divorce to take place. You may also need the resources required to argue with your spouse over the matter. It should additionally be borne in mind that the flexibility enjoyed by our courts has a downside: lack of certainty over what they will order.

I suspect that the thing that family lawyers are talking about most this week is the President’s judgment in P (A Child), in which he granted a reporting restriction order in the ‘forced caesarean’ case. In the course of the judgment he said that the case was a demonstration of the ‘pressing need for radical changes’ in the way the family courts approach transparency, i.e. informing the public about what they are doing. In particular, he said that many more judgments should be published. Whether this would this increase confidence in the system and satisfy the doubters, I’ll leave to you to judge.

As was expected, on Tuesday the Judicial Conduct Investigations Office (‘JCIO’) published a statement indicating that they had issued Mr Justice Coleridge with a formal warning for judicial misconduct. They considered that his decision to participate in media articles in which he gave his views upon marriage to be incompatible with his judicial responsibilities. I have seen a few family lawyers on Twitter express surprise and/or disappointment at this, with the suggestion that the reaction of the JCIO was ‘over the top’. For my part, I have already made my own feelings regarding Mr Justice Coleridge’s position clear on my blog.

Lastly, the news that Lord McNally was to be replaced as Justice Minister by Simon Hughes was generally greeted with modest surprise amongst family lawyers. Whether this will lead to changes in policy will remain to be seen. Some hope, however, that it could mean that property rights for cohabitants, a Liberal Democrat policy, could once again move up the government agenda. My only answer to that is that Lord McNally is also a Liberal Democrat.