Divorce, domestic violence and civil partnerships: The last week in family law

In a case that has been described by her barrister as “extraordinarily unusual”, a wife is appealing against the refusal of the court to grant her a divorce. Tini Owens, who has been married for 39 years, issued divorce proceedings on the basis of her husband’s alleged unreasonable behaviour. However, her husband denied that he had behaved unreasonably and defended the divorce. Judge Robin Tolson refused the divorce at a hearing last year, stating that Mrs Owens’ allegations were “of the kind to be expected in marriage”. Mrs Owens has now taken her case to the Court of Appeal. Her barrister Philip Marshall QC told the court that the “vast majority” of divorces were undefended in 21st Century England. He said that Judge Tolson had not made “proper findings of fact”, and argued that his decision should be overturned. Sir James Munby, President of the Family Division, hearing the appeal, said: “It is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be.” Judgment has been reserved. The case has led to renewed calls from family lawyers for the introduction of a system of no-fault divorce, whereby it is not necessary for one party to blame the other for the breakdown of the marriage.

In a separate development, the government has confirmed that it has no current plans to introduce no-fault divorce. In reply to a question by Lord Pendry, justice minister and House of Lords spokesperson Lord Keen of Elie said the government was committed to improving the family justice system so that separating couples can “achieve the best possible outcomes for themselves and their families”. He added: “Whilst we have no current plans to change the existing law on divorce, we are considering what further reforms to the family justice system may be needed.”

The Family Court has held that a couple who had their one-week old child removed from them by the local authority while still in the hospital maternity ward had their human rights breached. In the case Kirklees Council received a referral from the maternity ward raising concerns about the long-term parenting capacity of the parents. The Council obtained an interim care order at a hearing in November 2015 at which the parents were neither present nor represented, having not been informed of the hearing by the Council. The child was returned to the parents in January 2016, and the case was subsequently dismissed. The Council admitted that the rights of the parents and the child had been breached, and was ordered to pay £3,750 in damages to each of them.

Prime Minister Theresa May has announced plans for a major programme of work leading towards bringing forward a Domestic Violence and Abuse Act. The programme will look at what more can be done to improve support for victims of domestic violence and abuse especially in the way the law, and legal procedures, currently work for such victims. Experts in the area will be invited to contribute ideas and proposals for improving the way the system works which is likely to lead to legislation – making it much easier for law enforcement bodies to find and use more consistently the measures at their disposal. The Prime Minister believes that the measures that come out of this work will raise public awareness of the problem – as well as encourage victims to report their abusers and see them brought to justice.

And finally, a heterosexual couple have had their appeal against a decision that they could not enter into a civil partnership because civil partnerships are only available to same-sex couples dismissed by the Court of Appeal. Rebecca Steinfeld and Charles Keidan argued that the law was discriminatory. The Court of Appeal agreed, but two of the three judges held that the discrimination was justified because the Government was looking into changing the law, and needed more time to consider the matter. Responding to the decision, Nigel Shepherd, chair of Resolution, said: “It is understandable that some couples are attracted to a form of registered partnership that is not marriage, but which will give them similar protection to marriage. That said, from a purely legal perspective, it makes little sense to retain civil partnership. But, if the option of civil partnerships for same sex couples is to continue to be retained, then civil partnerships must also be available to opposite sex couples in order to avoid discrimination. We agree that there is a pressing need for the government to address this issue.”