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an article entitled: Another blow to marriage as top judges demand no-fault divorce and say current laws are vastly outdated.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.