Tuesday, March 27, 2012

Another blow to journalism

How many things can you find that are wrong and/or annoying in a newspaper article? Well, if the newspaper is the Daily Mail, quite a few (but then you probably already knew that).

Today the Mail excels itself with an article entitled: Another blow to marriage as top judges demand no-fault divorce and say current laws are vastly outdated. The article is a classic piece of right-wing scaremongering suggesting that, when it comes to marriage, the world will end if we do not stop the march of progress and return to the 'values' of the 1950s. The villains of the piece are Sir Nicholas Wall who, in a speech to Resolution at the weekend, said that he could find no good arguments against no-fault divorce, and Lord Justice Thorpe, who has refused Susan Rae's appeal against her divorce, which she said was based on "trivial" grounds.

OK, let's analyse the article. I shall start with the second paragraph:
"At present, couples can be legally parted within six months if one party is shown to be at fault."
I really don't know what this is on about. What does "legally parted" mean? Where does the six month period (presumably from the date of the marriage) come from?

Moving swiftly on to the next paragraph:
"The most common grounds are unreasonable behaviour, which can include committing adultery or devoting too much time to one’s career."
Unreasonable behaviour and adultery are, of course, entirely separate ways of proving that the marriage has irretrievably broken down (although I do accept that unreasonable behaviour may be used as an alternative where adultery can't be proved).

The article then discusses what our two wicked judges said. I strongly agree with Sir Nicholas Wall, but I can understand that others, particularly those who, unlike family lawyers, have little experience of marriage breakdown, may take a different view, so I will not directly argue his point here. However, the Rae case is surely an example of why his view is correct. The article impliedly denounces Lord Justice Thorpe, but all he is saying is that there is no point keeping a marriage going if one party wants out. His point that Mr and Mrs Rae would have been spared "these painful investigations" into their marriage if we had an entirely no-fault divorce system is, in my view, perfectly valid and beyond criticism.

The article then finishes by saying that "politicians and family experts yesterday warned against removing fault from divorce", citing Tory MP Julian Brazier and Jill Kirby 'who writes about family life'. What have these two authorities on the subject got to say?

Julian Brazier really does want to turn back the clock. He says that: "The real issue is whether we need to reintroduce fault for the determination of child custody and division of resources". I'm sorry, fault for 'custody' (Mr Brazier is such an authority that he doesn't know the terminology changed twenty years ago) disputes? What, are we going to deny a child the right to see a parent because that parent has committed adultery? (If Mr Brazier is referring to domestic violence then perhaps someone should tell him that that is fully considered by the court in 'custody' disputes.) As for reintroducing fault when considering financial applications, I had hoped we had moved on from that argument.

Finally, we have Ms Kirby, who writes a weekly column at Conservative Home. She makes the point that many who go through divorce feel a sense of injustice that no fault was attributed to their spouse, who they feel was to blame for the marriage breakdown. It is a valid point in the sense that it does occur - I recall coming across it quite often when I was practising. However, that does not make it right. Firstly, it is usually quite artificial to attribute blame for a marriage breakdown entirely to one party and secondly, it is surely not the job of the court in the twenty-first century to punish someone for marital misbehaviour (save, possibly, by making them pay the other party's costs). Further, if the ultimate aim of such a policy is to dissuade married people from 'misbehaving', then that is just pie in the sky.


  1. Aha, would that be the Jill Kirby 'Family Expert' featured here
    http://nearlylegal.co.uk/blog/2011/01/on-the-naughty-step-a-bag-of-wind/ ?
    I believe it would.

    1. Indeed it would NL, and she still appears to be pursuing her career of offering quotes to the DM as an 'expert'!

  2. Northern Lights27 March 2012 at 11:13


    I donned a stout pair of gloves and opened your link. The following from LJ Thorpe jumped off the page:

    Another senior judicial figure, Lord Justice Thorpe, indicated his support for no-fault divorce in an Appeal Court ruling, arguing that the current laws ‘represent the social values of a bygone age’.

    Seems to apply to the Daily Mail just as much as the current laws.
    Exactly why an already painful separation needs to be made worse by a mudslinging match in court is beyond me.
    Of course the Daily Mail and its "experts" have a history of responsible reporting on legal issues. There was the asylum seeker who couldn't be deported because he had a cat. There was the startling claim that the UK loses 2/3 of cases in Strasbourg (actually less than 2%)
    Even I can't understand why they haven't got their little heads around the fact that we did away with "custody" and "access" over 20 years ago.
    Sadly, they have a depressingly wide readership.
    I guess that's one of the reasons why I've become a bit of a misanthrope in my old age.

    1. Yes, it is the size of their readership that is the particularly worrying thing.

      I fear that I turned to misanthropy myself long ago.

  3. Click on the article's author's name to see a list of similar stories; then consider the word "reporting" and its journey from its legal origins to the work of this gentleman and others.

    1. I did that - clearly, he is a master of his art!


  4. Well John, we disagree on just about everything else, so I will put the counter argument here also.

    A marriage with no fault divorce is not a valid contract and has no promises so may as well be worthless. Thus we should either go down the route of the Philippines and ban divorce, or write our own marriage contracts, such as "I promise to show you a good time from time to time until one of us doesn't want to anymore, then we have a clean break with no maintenance and 50/50 split of assets and contact a separate issue". Well, that's the one I am considering taking by way of a pre nup at the moment. So perhaps in a long route we are agreeing violently, that the system should be changed to no fault, but I add to that we should be able to write our own vows and pre nups or opt out.

    In Israel you can have a religious wedding or a civil ceremony. 99% go for the ability to divorce with pre-nups civil option.

    Also agree The Daily Mail does negativity a lot at the moment.

    1. There you are, we agree on two things!

      Seriously, people change. Sad but true. Should we punish them for that?

  5. Not unless it's written into the marriage contract, and perhaps if bondage is enjoyed by the parties ;-).


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