Divorce, a new President and court closures: The last week in family law

In perhaps his last speech before retiring as President of the Family Division (see below) Sir James Munby has criticised the lack of progress towards dealing with the issue of the cross-examination of an alleged victim by an alleged perpetrator. The Government had intended to deal with the issue in the Prisons and Courts Bill, but that Bill was lost in the run up to the General Election last year, and the Government have since done nothing to bring it back. Sir James noted that: “Commentators have, unsurprisingly, picked up the fact that the relevant clauses previously contained in the Prisons and Courts Bill 2016–17 have not been included in the Courts and Tribunals (Judiciary and Functions of Staff) Bill. No doubt clause 2 of this Bill deals with a matter of importance to some, but whether a person hearing bankruptcy cases should be called a Registrar or a Judge is surely of much less pressing concern and infinitely less priority that putting an end to this long-standing abuse in the family courts.”

The Supreme Court has decided that a woman who had been attempting to divorce her husband must remain married to him. Tini Owens issued divorce proceedings on the basis that her husband had behaved in such a way that she could not reasonably be expected to live with him. Her husband denied the allegations of his behaviour, and in 2016 the court ruled that Mrs Owens could not have her divorce. Mrs Owens appealed against that ruling, but the Court of Appeal dismissed her appeal. She appealed again, to the Supreme Court. The Supreme Court also dismissed the appeal, finding that the judge at the original hearing had applied the correct legal test, and was entitled to reach the conclusions that he did. Mrs Owens must now wait until 2020, when she has been separated from her husband for five years, before she can get her divorce.

The Supreme Court did, however, suggest that Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in these circumstances. Responding to the judgment a spokesperson for the Ministry of Justice has said that the department is ‘carefully considering the implications’ of the judgment, as the current divorce system ‘creates unnecessary antagonism in an already difficult situation’.

Sir James Munby has retired from the Presidency of the Family Division, a position he has held since 2013. He has been replaced by the new President, Sir Andrew McFarlane. At his final press conference Sir James made a number of suggestions as to how access to justice may be improved. One suggestion was the introduction of mobile courts, similar to the mobile libraries and x-ray units that he used to see going around the countryside in his youth. Another suggestion was that courts could sit in pubs, offices, or other conveniently located buildings, rather than in buildings owned by the state. A further idea was to ask the public if they wanted to Skype the judge, to which he said: “I don’t know what the answer is but we haven’t actually gone out and asked litigants what they actually prefer … I wouldn’t be surprised if a significant number of people would be saying actually … I’d rather do it by Skype.”

And finally, Lady Hale, the President of the Supreme Court, has criticised the closure of many courts by HM Courts and Tribunals Service, in favour of online digital services. In a speech she gave to the Nuffield Foundation, and that has just been published on the Supreme Court website, 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 the Catterick army base. She said that with no car and no computer, if the woman wanted to obtain a non-molestation order she would have to travel by public transport to her nearest court, which was Northallerton Magistrates’ Court, some 15 miles away. However, the Ministry of Justice has announced that Northallerton Magistrates’ Court is to close, which will mean that the woman would have to travel to her next nearest court at Harrogate, which is 40 miles away, with no obvious way to get there, or Middlesbrough, which involves getting a bus to Darlington and a train from there. Lady Hale added: “If [the woman] does get legal aid for her anti-molestation application, her partner may not, and she may face being cross-examined by him in person. So she feels defeated by the problems of going for a non-molestation order.”