Family Law update - Has the Family Law world gone mad?

Family Law update - Has the Family Law world gone mad?

Has the Family Law World Gone Mad?

We seem to be living in strange times! If the events across the Atlantic and the antics of the new President are not bizarre enough there have been very recently two potentially landmark decisions in family law that throw in doubt long established corner pieces of family law. These have made headlines in the national press although it remains to be seen what the long-term repercussions and ripple effect will be on these areas of family law.

Tini Owens

Mrs Owens is a 66 year old woman who sought a divorce against her 78 year old husband based upon his unreasonable behaviour. There is only one ground for a divorce under present legislation and that is if one of the spouses considers that the marriage has irretrievably broken down but that needs to be shown in one of five ways. A very common way is based on unreasonable behaviour. Current legislation remains that there has to be a "fault" to allow a divorce and despite Parliament considering the possible introduction of "no fault" divorce as in other countries this has not happened and seems unlikely to be introduced here in the near future.

It is common practice now when a marriage has broken down for divorces to take place on effectively an agreed basis. There is an acknowledgement by divorcing couples (and by Judges) that it takes two to tango. If one person does not want to be married there is little point in forcing them to remain married. It has therefore become accepted practice around the country that relatively minor details of unreasonable behaviour put together with a cumulative effect is enough for there to be sufficient unreasonable behaviour to justify a divorce. Not so in the case of Mr and Mrs Owens.

The Court of Appeal has been asked to overturn the initial ruling by a Family Court Judge that Mrs Owens should not have her divorce. She thought there was no prospect of a reconciliation but her husband did not agree. Quite how he could come to that conclusion when his wife had started a divorce against him remains to be seen and they had been living separately for some time but it has been left to the Court of Appeal Judges to decide whether there was sufficient in the allegations made by Mrs Owens that were disputed by her husband. The initial Judge that refused to allow the divorce effectively said that the details given by Mrs Owens were just normal for marriage! Whilst the Court of Appeal decision has not yet been given this is troubling if Courts are going to be acting more as a "judge" as to what is normal in a marriage. And the huge legal costs that have been incurred in this particular case are a big worry if spouses are going to spend a lot of time and money arguing about whether there should be a divorce when realistically their marriage is over even if one of them does not want that. It is unlikely that this will trickle down to divorces that are taking place around the country as each divorce and the circumstances are treated differently. It could become a very worrying trend if this case starts to change attitudes on divorce especially within the judiciary although those that already feel that it is too easy to get a divorce may applaud the stand taken by the Judge in this particular case.

Denise Brewster

Despite the weight of public opinion that they do have rights an unmarried couple ("common law husband and wife") do not have rights. Or so we thought! Lawyers for many years have been trying to spread the word about this based on the misconception that many people have that common law husbands and wives do acquire rights after a period of time. The reality is that with very few exceptions rights are only given to married couples or civil partners and not cohabitees (ie unmarried couples living together as husband and wife although there is no conclusive legal definition of cohabitation).

And then there was the case of Denise Brewster. This was a Supreme Court decision following a series of hearings in Northern Ireland. It concerned an unmarried couple and whether Denise Brewster should be entitled to benefits under her common law husband's pension after his death. This was a local government occupational pension. If she had been married to her ex-partner no nomination of benefits would have been necessary but as they were not married the pension scheme required her now deceased partner to have made a nomination in her favour. He had not done so and the pension scheme therefore said she was not entitled to benefits under the pension.

After lengthy litigation the Supreme Court has ruled that she should be entitled to benefits under the pension. This was based upon discrimination in that the scheme did not require married couples to complete the nomination form whereas it did for an unmarried couple. Up until now discrimination was only actionable based on such things as race and sexual orientation so has the Supreme Court now introduced a new area of discrimination against unmarried couples?

Whilst morally and on a common sense basis many people will probably agree the decision was fair. However the question is that if cohabitees and non-married couples are to have such rights should that not be determined by Parliament which has for a long time refused to introduce legislation giving rights to anyone that is not married and not in a civil partnership? So whilst the decision in Denise Brewster's case was pragmatic and objectively fair does that open the floodgates on other claims or will it just be limited to the situation she had with losing any entitlement under her late partner's pension? No doubt all pension schemes will be reacting to this and changing their policies on form filing but the risk (or positive development depending on how you look at it) is that this case starts to change one of the current foundations of family law that "common law husbands and wives" do not have rights.

Commentary by Neale Grearson, Head of Clapham & Collinge Family Law Department.

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