The cheap and quick divorce laws in England and Wales are undermining the institution of marriage and need to be reformed to help prevent acrimonious break-ups, a senior Court of Appeal judge has warned.
The call for a change in the law comes from Lord Justice Wall, one of Britain's foremost family law judges, and follows a string of bitter and high-profile divorce battles. Under the antiquated divorce laws of England and Wales, couples have to blame each other if they want a quick divorce, which is usually granted within six months.
In an interview with The Independent, Lord Justice Wall called for an end to fault-based divorces and the introduction of a system that puts the needs of children and financial provision at the heart of the process. He said: " I do believe strongly in the institution of marriage as the best way to bring up children and that's one of the reasons why I would like to end the quick and easy divorces based on the fault system. I think that it actually undermines marriage."
The judge, who was a member of the Court of Appeal which heard the recent case of Miller v Miller in which the former wife of a wealthy businessman was awarded a £5m settlement after a three-year marriage said that big-money divorces which grabbed the headlines distracted attention from the misery of thousands of ordinary divorces which take place each year. " Fault has become almost entirely irrelevant to financial claims post- divorce, yet conduct remains the most important peg upon which to hang a decree," said the judge.
Last night, the family law reform group Resolution welcomed Lord Justice Wall's intervention. Jane McCulloch, the vice-chair of Resolution, said: "We are behind the principle of no-fault divorce because we would like to see an end to couples having to make allegations about each other's behaviour."
Just over 300,000 people were married in 2004, compared to 350,000 20 years ago. But most recent figures show that almost 170,000 people were divorced last year, making Britain the capital of Europe when it comes to marital separation.
In the past few months a number of very public divorce battles have shown how the law has helped to stoke the fires of acrimony in divorces involving the rich and famous. "Divorce has become very easy so that it is a box-ticking exercise, something administrative dressed up as a quasi-judicial function," said Lord Justice Wall, whose view is known to be shared by other senior members of the judiciary.
Lord Justice Wall says the courts are not adequately equipped to deal with the social and emotional consequences of divorce, which he says rarely leave anyone unscathed and can often destroy lives. "People who divorce often simply don't know what they are letting themselves in for and the family courts are not well geared-up for dealing with the bitter battles which follow, particularly over children," he said. "I am only sorry that the Government did not pursue non-fault-based divorce when the seeds had been sown for a change to the post-separation consequences of divorce."
In 2001, Labour abandoned plans to scrap fault-based divorces on the ground that parts of the scheme, which sought to encourage mediation, were thought not to be working. But Lord Justice Wall says he "did not buy" this explanation, although he accepts that the Law Commission's original proposals had been "mauled" by a series of amendments in Parliament. "I still think the Family Law Act would have helped make couples think seriously about the care of their children and proper financial provision," he said. "But divorce is very emotional and people often bring unfinished business from the broken relationship into court; their positions become polarised and, particularly in disputes over children, they sometimes think of using the courts to seek revenge.
"For many people, the fact that, for example, one spouse ran off with someone else remains of paramount importance. But it is not relevant to the issues the court has to address. I do believe in getting rid of fault because it should have nothing to do with the divorce process and shouldn't affect the result.But it will be difficult because people actually don't like not being able to blame someone in a divorce.
"They will say fault is what matters 'He's gone off with someone else, he's broken the contract. Why do I have to give her or him more money'. Mr Miller was saying the same thing 'Why should I give this woman more money? I don't think she was a very good wife'."
Earlier this year, the House of Lords ruled in favour of Mrs Miller and said that fault was irrelevant in financial divorce settlements. Now Lord Justice Wall says fault should be removed completely from the divorce process. He says that the system has become "cynical and utilitarian" and not fit for the purpose for which it is now intended.
The architects of our first divorce laws, which influence the rules today, designed the legislation to reflect society's disapproval of a breakdown in a marriage which often had a negative social consequence for women.
But Lord Justice Wall argued: "That's all changed since the war. Now a divorced woman has no social stigma, so I would welcome an initiative that got rid of fault. Under the abandoned Family Law Act, couples had to think about the consequences of their actions by ensuring that they had made provision for their children and their finances before they would be granted a divorce. Now it looks like we will have to wait another generation for reform of the divorce laws."
A judicial reformer
Nicholas Wall's judgments often attract the unwanted attention of fathers' groups whose members have posted his name on the internet and sent him hate mail. But Lord Justice Wall, 61, is in the vanguard of a reforming movement in the judiciary which has helped pave the way for open justice in the family courts. Called to the Bar in 1969 before taking silk in 1988, his forward thinking on family law has propelled him to the upper echelons of the judiciary. Three years ago he was appointed a judge in the Court of Appeal where he has sat on some of the most important divorce cases of recent years.
Sir Paul McCartney filed for divorce in July in the hope of a quick settlement with his estranged wife, Heather. Both had hoped for an amicable split, for the sake of their two-year-old daughter, Beatrice. Sir Paul's petition for the break-up of the four-year marriage is understood to have cited Lady McCartney's "unreasonable behaviour". The singer was said to have described his wife as "argumentative" and "rude to staff". Lady McCartney has hit back by saying she would be filing counterclaims in British and American courts. Sheis reported to be claiming £200m but most lawyers believe the final pay-out will be much less.
In May the House of Lords upheld a ruling that Melissa Miller should receive a £5m divorce settlement from her husband, Alan Miller, who is worth more than £17m.
Ms Miller had argued that one reason she was entitled to a larger share of her husband's assets was that he had committed adultery. But the law lords, in a ground-breaking ruling, said fault should not help determine how much a spouse receives in a divorce settlement.
Instead, Ms Miller won her case because the courts decided Mr Miller had earned large sums during the marriage and that she was entitled to think her financial position would last for life.
The former England footballer and TV presenter Gary Lineker and his wife, Michelle, were divorced after 20 years of marriage earlier this month. Mrs Lineker was granted a decree nisi on the grounds of her husband's " unreasonable behaviour". In documents, she said the 45-year-old Lineker's behaviour caused her "stress and anxiety". They separated in April when she moved out of their £2m mansion in Berkshire. Mr Lineker, said to be worth £30m, did not defend the petition. Neither attended the hearing in the Family Division of the High Court before District Judge Caroline Reid.Reuse content