Divorce reform, prenuptial agreements and child support: The last week in family law

The Court of Appeal has dismissed an appeal by a wife against the refusal of the court to grant her a divorce on the basis of her husband’s unreasonable behaviour. Tini Owens was refused the divorce because the judge found that the allegations about her husband that she put forward were insufficient to amount to unreasonable behaviour. The Court of Appeal upheld that ruling, and therefore dismissed the appeal. Mrs Owens’ barrister said that the decision left her in “a wretched predicament”, locked by the law into a loveless and desperately unhappy marriage. The decision has led to renewed calls for the introduction of no-fault divorce. Responding to the judgment Resolution Chair Nigel Shepherd said: “This judgment will obviously come as a disappointment to Mrs Owens, and absolutely underlines the urgent need for no-fault divorce. Nobody should be compelled to remain in a marriage against their will, yet judges’ hands are tied by the current divorce law. Sadly, all too often, couples are forced to play the blame game, and today’s decision demonstrates why this needs to change.”

Meanwhile, interim findings from research exploring how the current divorce law works in practice have been published. The research highlights the need for reform of divorce law in England and Wales. Its key findings included that the majority of divorces are based on ‘fault’, i.e. blaming one spouse for the marriage breakdown, that divorce petitions are not necessarily accurate records of who or what caused the breakdown of the marriage, and that fault can create or exacerbate conflict, which can affect negotiations about children or finances where the law expects parties to work together. The report concludes: “In reality, we already have divorce by consent or ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state. There is no evidence so far from this study that the current law does anything to protect marriage. The divorce process is currently being digitised. This is a timely opportunity for law reform so that divorce is based solely on irretrievable breakdown after notification by one or both spouses.”

In a speech at the University of Bristol Supreme Court Justice Lord Wilson has given his support to the idea that prenuptial agreements should be enforceable, although he said that the issue may need further attention. He said that “We have now reached the stage in which, if acting with appropriate care and understanding, parties should be allowed to elect the sort of marriage which they want”, rather than have the law decide upon their obligations on divorce. He very much approved of the Supreme Court’s decision in the 2010 case Radmacher v Granatino that courts ‘should give effect to a nuptial agreement that is freely entered into by each party with full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement’. However, he said the issue over what would constitute fairness ‘may need further attention’.

New research from Cardiff University’s School of Law and Politics suggests that guidance given to judges to routinely publish their judgments is not being consistently followed, leaving the public with a patchy understanding of the family justice system in England and Wales. The guidance, which was issued by the President of the Family Division in January 2014, was intended to counter the charge that the family courts operate a system of secret and unaccountable justice. The research found that judges were struggling to find the time to publish judgments safely, without identifying the children and families involved. Dr Julie Doughty, who led the research, said: “The judgments now published provide more information about the role of the family courts than was available prior to the guidance, but there are inconsistences in the way courts have responded which can present a confusing and not necessarily representative picture of the system as a whole.”

And finally, a report by the National Audit Office has found that at least £3 billion in child maintenance payments ordered by the former Child Support Agency may never be collected. The Agency was replaced by the Child Maintenance Service in 2012. According to the report three-quarters of the £4 billion in payments owed by absent parents, some dating back more than 20 years, are considered “uncollectable” by the Department for Work and Pensions. A further £527 million of arrears is described as “potentially collectable” while just £366 million is assessed as being “likely to be collected”.