Baroness Hale repeats no fault divorce call

divorce, decree absolute, wedding ring

Baroness Hale, the deputy president of the Supreme Court, is a personal hero of mine. A Yorkshire woman like myself, this distinguished former barrister is – to date – the only woman to have reached the topmost tiers of the legal system. She became the first female ‘Lord of Appeal in Ordinary’ in 2004, when the House of Lords still functioned as the final court of appeal in England and Wales. She then moved over to the Supreme Court of the United Kingdom when it was established in 2011 to take on that judicial function, and Lady Hale became its Deputy President just two years later. She is still the only female Justice.

In addition to her background as a judge and barrister, Her Ladyship spent many years working as a legal scholar and she seems to have maintained a keen interest in legal systems and structure. In a new interview with veteran Times legal correspondent Frances Gibb for example, Lady Hale reiterates her belief in the need for ‘no fault’ divorce in this country. In a number of other countries, it is possible to petition for divorce without citing a specific reason or demonstrating a specific wrong, such as, for example, adultery. It is generally believed that this helps to minimise rancour between the divorcing spouses because no one, legally at least, gets the blame for the breakdown of the marriage. Australia, Canada, Spain, Sweden, the United States, Russia and even China all offer their citizens no fault divorce.

But not England and Wales. Proposals have been made and discussed many times – as Frances Gibb notes, Lady Hale herself proposed its introduction almost 20 years ago during her stint at the Law Commission, only to have the idea torpedoed by “an alliance of Tory MPs and the media” on the grounds that the change could undermine the institution of marriage.

Two decades on, it is still necessary to cite a reason when filing for divorce in this country. One of five facts must be demonstrated in order to establish the “irretrievable breakdown” of the marriage: namely adultery, unreasonable behaviour, desertion for two years, separation for two years with consent, or separation for five years without consent.

Of those five facts, all but one (two years’ separation with consent) are clear attributions of blame.

Despite the furore back in the 1996, Lady Hale has never lost her belief in no fault divorce. She raised the topic in an interview with the Evening Standard last year, and she has returned to the topic when speaking to The Times.

She declared:

“Our recommendations were perfectly straightforward and simple: the government introduced complications so that what was eventually enacted [drafted] no one thought workable. I am sure we should look [at the proposals] again.”

It is clear from the interview that Lady Hale no longer feels, as a senior judge, that she is the right person to spearhead reform. To quote Frances Gibb:

“…as any judge, she sees her job as applying the law and is wary of politics.”

Times have changed in recent decades. Seemingly fundamental institutions like marriage are questioned these days like never before: the number of cohabiting couples is continuing to rise relentlessly and gay marriage, once a shockingly radical innovation, is now both legal and commonplace.

Personally, I would want to place some question marks against the Baroness’ views. How long would people have to wait before a no fault divorce was granted? Six months? Twelve months? Twenty-four months?

She believes that financial settlements should be resolved before a divorce is granted – but how long will that delay the issue? It is not reasonable to leave people in limbo for lengthy periods when a marriage has, to use the legal terminology, irretrievably broken down.

No fault divorce is fine but the devil is in the detail.

Read the full interview with Lady Hale here.

Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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5 comments

Andrew - April 10, 2015 at 4:26pm

She also believes that pre-nups should be subject to “review” by the judiciary. Apparently we – but I think she means women in particular which is bizarre – are unable to make up their own minds and need protection from themselves.

Nordic - April 10, 2015 at 8:42pm

Dear Marilyn,
6 or 12 months is a standard applied in many other jurisdictions and works fine. If two adults have decided they do not want to be married, much better to face reality and let them get on with the process. Fault based divorce is something that belongs in centuries gone. It has no meaningful role in a modern secular society and serves no purpose beyond creating acrimony (and legal fees).
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Finalising financial matters may be a horrific process in this jurisdiction but that sad state of affairs is entirely of the system’s own making. What is needed is a legally binding matrimonial asset regime combined with clear rules for child maintenance and robust guidelines for spousal maintenance (transitional, term limited). In many jurisdictions, the courts have largely been removed from these matters and can hence concentrate on all the other areas of family law that actuslly do require discretion. The current complicated and chaotic financial relief process serves no purpose except to create more acrimony (and massive legal fees compared with almost any other jurisdiction).
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This is not very complicated or difficult.

david mortimer - April 11, 2015 at 12:16pm

For some thirty years now a quiet revolution has been waged throughout the Western world. Most people are now familiar with the social consequences of the divorce explosion: the growth of single-parent homes and massive increase in fatherless children. The Pandora’s box of social problems this has released has also reached general awareness. Virtually every major personal and social pathology can be traced to fatherlessness more than to any other single factor: violent crime, substance abuse, unwed pregnancy, truancy, suicide, and more. Fatherlessness far surpasses both poverty and race as a predictor of social deviance.

Bolchedik - April 12, 2015 at 3:40pm

You’re quite right David. How else would you ensure the creation of a self-destructive and ignorant class that won’t have the financial or intellectual wherewithal to threaten your economic privilege? And how else would you turn a large proportion of that class into criminals so as to be able to take attention off of your ongoing criminal abuse of power and authority? Fatherlessness is the perfect solution for the megalomaniac elite. And what subterfuge exploiting the rhetoric of women’s emancipation to achieve that end?

But I am not sure what any of this has to do with Baroness Hale, other than that her words too reek of hypocrisy.

Andrew - April 11, 2015 at 5:04pm

I didn’t know she was a Yorkshirewoman – she goes up in my estimation. That’s almost as good as being a Northerner; as we all know, the North begins at the River Tees,

Years ago I had a case on against a Leeds solicitor whom I had better not name although he must be dead by now and who was given to playing the professional Yorshireman. You will know the type.

And at a meeting with my London-based client and his London-based client he said to me “Excuse me if I speak plainly as we do where I come from. Your client must either shit or get off the pot”

“I could not disagree, Mr X, but you must forgive me if I point out that where I come from we regard where you come from as the better end of the Home Counties.”

“And where is that?”

“Hartlepool”.

“Indeed? Then I’ve got good news for you. Recent research has conclusively established that the monkey was in fact a French spy!”

We both collapsed in laughter while the clients looked at each other, wondering what these two looney lawyers were talking about . . . but I’m sure you know!

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