IRREMEDIABLY BROKEN MARRIAGE, BUT NO DIVORCE

Monty Python’s silly divorce story

Imagine a town in the western US about 150 years ago. Two gun-men are poised to shoot. By extreme chance both shoot as near simultaneously as possible. Both are killed. It would be impossible for both to shoot at precisely the same moment: one must have done so fractionally before the other. The local sheriff, the then law of Colorado (say) dictates, must find out who shot first before the two bodies can be buried.

The impossibility, or absurdity (according to point of view), of the sheriff’s job is akin to that of the Court of Appeal in Lindner v Rawlins [2015] EWCA Civ 61. The judges were dealing with parallel divorces arising from the same marriage. Mr Linder had filed a petition (Matrimonial Causes Act 1973 s 1(2)(b): unreasonable behaviour). The wife filed an answer denying his allegations. And, says the law report, she filed her own unreasonable behaviour ‘cross-petition’ (para [6]: ie perhaps a separate petition, though she could have proceeded on a prayer in her answer).

Either way the English legal system cannot find that a marriage has irretrievably broken down, though both parties say it has. MCA 1973 – it will be pointed out by someone – only enables the parties to have their marriage dissolved if the court finds (1) that the parties’ marriage has irretrievably broken down (MCA 1973 s 1(1)). That is plainly the case here: possibly that is the only thing that this couple can now agree on. But – and here’s the rub – (2) irretrievable breakdown, though blindingly obvious, must be found against one party or the other (or they could agree (if they could agree on anything) to joint decrees on their respective petitions; and I think if asked nicely I could find an old precedent to deal with the point). The s 1(1) finding must be only on the basis of one or more of the five facts set out in MCA 1973 s 1(2) and found on the petitioner’s petition.

I assume neither Mr L nor Ms Rawlins (formerly Mrs Lindner) would either of them blink. So their divorce show, already running for over two years (Mr L filed his petition in January 2013), must go on.  Lawyers costs are not grinding them down (see the next section of this note). The case goes to trial – unless they agree to let one of them to file a two-year living apart petition (MCA 1973 s 1(2)(d)), as suggested by Black LJ [31]. It doesn’t take reading much between the lines to wonder if this couple could even agree the date of birth of their first born; but if Heather Mills and Sir Paul McCartney could do it (agree to a s 1(2)(d) petition), then who knows?

But in the meantime, surely someone can dig out and dust down the stuff on no fault divorce and run this case through its law reform mill.

Of interest to all family lawyers, is the court’s summary and explanation of disclosure rules in family proceedings – and specifically divorce. I will return to that another day.

Expense of judge’s time

Black LJ, with great patience and courtesy, disposed of the husband’s appeal which mostly related to his determination to prove a lesbian relationship – and more – and to undermine his wife’s credibility. He wanted, but was not permitted, to do so by seeking disclosure of a variety of documents from the police which he thought would prove his case. (Meanwhile in children proceedings a circuit judge had found as a fact that H had broken W’s leg.)

The court then went on to lament the lack of lawyers in the case and, Aikens LJ, to put this at the door of the Ministry of Justice with the loss of legal aid (see italicised passage – my italics – below). Two awkward facts blot this judicial complaint: (1) this case started before LASPOA 2012 was in force; and (2) rarely did the legal aid authorities grant legal aid for defended divorce proceedings: that was the law when I started in practice, and at a time when the legal aid scheme was not 25 years old.

This was the first two legal aid point to which the court did not draw its own attention. The third is that we do not know what are the means of the parties (perhaps H was asked – W was not in court – in the course of his submissions to the court). However, if you can’t get legal aid, because your case has no merit (eg for defended divorce) then be you ever so poor, you will not get a certificate.

First Black LJ (who makes no direct reference to legal aid) said this:

[32] The second observation is in no way a criticism of the husband who presented his case to us courteously and as comprehensively as he could. Nevertheless, the fact that he was not represented meant that he had approached it on a mistaken basis. The task that would normally have been fulfilled by the parties’ legal representatives, of finding relevant documents amongst the material presented, and researching the law and its application to the facts of the case, had to be done by the judges of the Court of Appeal instead. This is not a satisfactory state of affairs as the time taken to attend to this is considerable and cannot be spared in what is already a very busy court.

And then Aikens LJ:

[34] I agree with the judgment of Black LJ.   I also wish, wholeheartedly,  to endorse her observation at [32].   The procedural issue with which this appeal is concerned is technical and unusual.   The husband could not be expected to have mastered this area of the law in order to be able to present his appeal in a way that assisted the court.   The wife was neither present nor represented.   Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer.  To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file.  All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time.   The result is that there is, in fact, no economy at all.   Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.

Costs of procedure

I don’t imagine MCA 1973 s 1 will be changed very quickly to resolve the absurdity of both people saying their marriage is dead, but neither being able to kill it till the full panoply of a two defended divorces have been gone through.

Two other short-term remedies suggest themselves:

(1)        Makes rules simpler and clearer

It is relatively much simpler to amend procedural rules. Courts can make orders of their own initiative (FPR 2010 r 4.4); statements of claim can be struck out (FPR 2010 r 4.3(1)). On the court’s own findings the wife, by the sound of it, would be entitled to a decree. The husband could fight on, but when the wife obtained a decree absolute on her decree, the marriage would be dead. He would be left like the knight in Monty Python’s Holy Grail. He’d lost both legs and both arms, yet was still determined to fight on… Mr Lindner would have no marriage to dissolve.

Alongside that, much of the silly procedure – still modelled on pre-1965 rules – could be revised and the whole of FPR 2010 Part 7 revitalised and brought into the 21st century (which FPR 2010 failed to do). Oh, and every effort could be made to write it in ordinary English so that people like Mr Lindner and Ms Rawlins can understand it, with only a modest dictionary to hand (they can always look up words like nisi and decree, I’d say).

(2)        Help for the judges

And for the judges: one can understand entirely their irritation at having to trawl through untidy and ill-managed files, with bundles which shock Sir James Munby P, even on a relaxed day. First, some of this could be done by better-qualified and more court staff. In cases where law needs to be looked up, why not an advocate to the court? These things would have to be case-managed; but I bet a junior advocate (and not always members of the bar: solicitors, for instance, know a lot more about divorce practice rules than most barristers) would be much less expensive to pay for the time, however brisk and expert, of Black LJ. I bet the good LJ would be much happier if that could be arranged.

Such an appointment could not, in this case, have headed off the over-enthusiastic husband; but a few phone calls to him before the case came on might have saved LJ preparation time enormously; have narrowed the issues; and, even, pointed out to the two parties that a quieter life would be gained by one filing a s 1(2)(d) petition.

Better still, with help of this sort the real fear which Aikens LJ has: ‘… that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it…’ can be hoped to be avoided. Sooner or later we are going to have developing a trickle of applications to set aside appeals decisions because the court overlooked crucial law (CPR 1998 r 52.17); and thus will more Court of Appeal time be wasted.

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