Divorce | Private Client
The Times Family Campaign has gained roaring support from leading judicial figures in England & Wales for divorce law reform. The campaign is calling for Parliament to make changes to the ‘outdated’ and ‘unjust’ law for family matters.
Sir Paul Coleridge, commented in 2017 following his paradoxical decision in the case of Owens v Owens that the marriage laws are ‘no longer fit for purpose’.
Owens v Owens
This case concerns a wife who petitioned under ‘unreasonable behaviour’, which was denied by the lower Courts, finding that minor arguments between couples are part and parcel of being married. Despite the woman’s plea that she finds herself in a ‘loveless marriage’, without her husband’s consent to divorce she now finds herself tied in for another 5 years until she will be eligible to present her petition. In Jersey, where there is no consent from a spouse, there is a 2 year waiting period until a petition can be before the Court. The 5 year condition in England is considered harsh and can only serve to exacerbate the tensions between the parties; moreover they will continue to be associated with one another for a lengthy period of time.
The petition of Mrs Owens was further denied in the Court of Appeal and is due to be heard in the Supreme Court as to whether it will be accepted. Due to the way in which the law currently stands, this has meant that Mrs Owens has incurred significant legal fees and further, by being unsuccessful, Mrs Owens has also been found liable to fund her husband’s costs.
Support from top judge for divorce law reform and no-fault divorce
More recently, in April 2018, Baroness Hale faced critics at a family law specialist’s conference in Bristol, where she again echoed her consistent views that the law is in need of an overhaul and divorce law reform for family matters.
Baroness Hale holds the position that fault can serve to worsen matters between married couples, and further, can result in more petitions for adultery or unreasonable behaviour where blame is attributed to the other party, in order to achieve a quicker divorce.
The honest comments made at the conference will be one which lawyers across the country and in Jersey will all too easily recognise. For example, a petition for unreasonable behaviour, where a lawyer is acting for the respondent, they will usually be advised not to defend the particulars stated in the petition, unless there are particulars which could jeopardise the respondent’s position, i.e. criminal matters. The reason for such advice, is that to defend a petition can only lead to further delays in a party’s divorce and incur unnecessary legal fees.
What is the position in Jersey?
The issue of Jersey divorce reform in Jersey has been commented on by The Jersey Law Commission in a paper published in October 2015. The paper supports the need for no-fault divorces and argues that new laws need to be established to replace the current archaic law we have in Jersey today.
The overhaul of the archaic legislation has also called to lift the three-year bar on divorce currently in place until a party to marriage can bring a petition.
A questionnaire was released to islanders in January 2018, which saw a volume of responses obtained within just a few hours.
For the divorce law reform to take place in Jersey, the States of Jersey, like Parliament in England & Wales, will need to be approved by its members. The Court are unable to provide for new legislation, as their role is only to interpret and implement what the law is before them.
With the case of Owens attracting a lot of media coverage, it is hoped the divorce law reform in both England & Wales, and in Jersey, will be implemented in the near future to avoid such unnecessary expense and hardship to parties wanting to end their marriage.
Author: Stephanie Devine