This is a guest post by Byron James, Barrister, Expatriate Law. He tweets as @byron_barrister.
Some quarters of the press have behaved so badly recently that passengers are no longer able to buy their wares on Virgin West Coast trains. Unfortunately, the rest of us have to put up with them.
‘Putting up with’ the media is painful for many family lawyers, both as they regularly see the cases they have meticulously argued reduced to a silly tabloid headline (for example : Vegetarian mother refused to let her son, five, see his father for a year in case he fed him meat), and as they constantly have to debunk the myths and misapprehensions perpetuated by the media, when advising their own clients and dealing with litigants in person.
The suggestion that one can become married through common law (i.e. just by spending a really long time living with someone) has become a standard bearer for such family law fake news, but there are in fact many other examples regularly peddled by the English press. These stories are published time and time again irrespective of their lack of accuracy and in turn feed the many public misconceptions regarding family law.
Below are some of the more common myths. It is sincerely hoped one day that facts may triumph over sensationalism when it comes to family law reporting.
- “Quickie divorce” is a thing
Despite the outrageous injustice of celebrities being treated just like the rest of the us, there is no special accelerated divorce procedure which can be requested or granted. The process for divorce is set out in Part 7 of FPR 2010 and applies to all parties irrespective of their public profile. The timeframe is detailed there and few family lawyers would suggest there is anything ‘quickie’ about it.
There is an accelerated financial remedy process contained within Chapter 5, Part 9, FPR 2010 for applications such as the variation of maintenance or under Schedule 1, Children Act 1989. Contrary to this divorce myth however, one doesn’t request this ‘quickie’ procedure, it simply applies unless one asks for the longer Chapter 4 procedure to apply in accordance with Chapter 5, Part 9.18A, FPR 2010.
Whilst the headline: “[insert celebrity] requests longer Chapter 4 procedure to be applicable rather than expedited Chapter 5 procedure in relation to Schedule 1 proceedings” is undeniably less sexy, and therefore seldom used, it is at least more accurate and stands as the only time that a party can make a request for a procedure with a different timeframe to be applicable.
- Marriages are ended in 20 second court hearings
The pronouncement of Decree Nisi is just that. It is a pronouncement. It is effectively an administrative exercise, which is barely a hearing and the parties do not attend. It is however often the first ‘hearing’ in the divorce procedure and it is pronounced publicly. This gets the press excited; so excited, in fact, that they have recently taken to publishing the extremely uninteresting order which records that the Decree Nisi has been pronounced, which they are incidentally entitled to request under rule 29.12(2) FPR 2010.
A pronouncement of Decree Nisi is significant only for two reasons: it enables the Court to approve a financial settlement and it allows the parties to apply for Decree Absolute as long it is received no earlier than 6 weeks and 1 day after the pronouncement of Decree Nisi.
It does not end a marriage.
Therefore, whilst there is a certain punchiness to a headline of ’19-year marriage ended in divorce hearing that lasted 20 seconds’, it is inaccurate in every respect.
- Celebrities get to keep ‘divorce documents secret’
There was recent outrage in the tabloid press that Jamie and Louise Redknapp were able to keep ‘their divorce documents secret’ and that a ‘judge has blocked the release of court papers referring to the couple’s divorce’. This complaint was all the more heinous as ‘no reasons were given’ regarding why the public had been denied access to the papers.
One could start with: this is a really good reason why living in a fault-based system for divorce is problematic. If parties who occupy a position in the public eye wish to become divorced sooner than 2 years with the consent of the other party, they are compelled by the current system to come up with negative comments about the other party to demonstrate ‘behaviour’. One might therefore think that it would be extremely harsh to for someone to exploit that requirement and turn this into tabloid stories.
If divorce petitions were routinely made available to the press, one can only imagine the field day the popular press would have with no understanding that marital breakdown is more nuanced than that which is contained within a petition. Acrimony would increase exponentially and family lawyers would need to consult a defamation lawyer with every petition. It would also increase the need for defended divorces. Presently, one can allow a petition to go undefended, even if one does not agree with its contents, because the allegations are usually of little relevance. If, however, they are the basis for an attack on one’s public reputation, then a defence might be required to simply try and rescue what is left afterwards of one’s reputation.
Good reasons aside why a document such as a divorce petition is not made public via the media, it is not just the Redknapps, or in fact any other celebrities, that have such documents ‘kept secret’. As noted in The Transparency Project’s blog last week, divorce proceedings under Part 7 technically take place in public in accordance with rule 7.16, FPR 2010 and as such members of the press are entitled to attend in accordance with rule 27.11(2)(f) FPR 2010. However, just because they are entitled to attend does not mean they are entitled to access to or inspection of ‘documents retained in court’, such as the petition, in accordance with rule 29.12 FPR 2010.
Therefore, contrary to the reporting of the Redknapp divorce, it would require a specific order of the Court to grant such permission for the press to have access to a court document, not an order preventing their publication.
The circumstances in which such permission would be granted are usually only if such a document is required to ‘make sense of the proceedings’ (Harman v Secretary of State for the Home Department  1 AC 280), or to allow the press to perform the role of ‘watchdog’ (Appleton and Gallagher v News Group Newspapers and PA (2016) 2 FLR 1). As interesting as it may be to hear that Mr Redknapp never put his shoes away or never did the washing up (say), it is unlikely a divorce petition would ever meet the criteria of either category.
- That there are really salacious reasons for a party receiving a lump sum
There is a common trend in the reporting of financial remedy cases that tries to sensationalise the rationale for the payment of lump sums.
Instead of reporting that ‘after a long marriage, the matrimonial capital was shared’ as it will be in almost every financial remedies case, reference is instead made to the more combative ‘winning a divorce payout’. This paints a picture of parties fighting and there being a winner and a loser.
In one story it was reported in the headline that a party had a lump sum award ‘slashed’ by £725,000 ‘after he admits affair’ (see here). The clearly intended impression given by the headline is that he was being punished for the affair by receiving less money. It is only by reading on into the article that one discovers that the real reason for the departure from equality, the husband being paid £2,000,000 rather than £2,750,000 : The Court of Appeal found that following a short marriage, with no children, the parties keeping separate finances and where the Wife had contributed far more to the marital wealth than the Husband, a departure from equality was justified.
What is the relevance of the affair, one might ask? Not only does the affair make it into the headline but also the opening line of the article. It does not however feature (unsurprisingly) in any of the reasoning by the Court or in the arguments put by the parties’ lawyers, largely because it was, as bad behaviour in the marriage usually is, legally entirely irrelevant to the financial division.
- Katie Price knows more about divorce than most family lawyers
Online petitions became somewhat vogue in October 2017 news items because of the commencement of the pilot project in which they were trialled. Whilst this is an important step for family law, and arguably one that should have been taken many years ago, it is unlikely to do anything other than enable the submission of documents more efficiently than at present. The issuing fee remains the same, the requirement to deal with finances separately remains the same and the fact that we are still in a fault-based system remains the same.
In one story, it was considered that the best way to cover online divorce would be a story about Katie Price, because, as they put it, she herself says that she ‘probably knows more about divorce than most family lawyers’ (see here). Whilst falling some way short of this boast, the article also failed then to have any relevance to online pilots at all.
Katie Price, allegedly fed up with both the amount she has paid for her partner to have sex therapy and to previous lawyers for previous divorces, was reported to have said she would like to follow Gary Lineker in ‘saving tens of thousands in legal fees’ by ‘using documents downloaded from the Government website’. Whilst no link was provided to this website, it is assumed that this is the HMCTS ‘form finder’ webpage that contains the D8, D81, Form A et al. It was suggested that the ‘web deal is thought to come with a £400 price tag’.
What appears to be alluded to is that one can download the forms oneself, complete them and submit them to the Court, get divorced and not need any lawyer at all. It is not clear what the £400 pertains to however as this would not even cover the court fees involved and the documents are free to download. Even if one assumed that all the requisite forms were downloaded and correctly completed by Katie Price without a lawyer, this would still be £600 at cheapest (£550 petition fee; £50 for a financial remedies consent order).
It is also worth bearing in mind that Katie Price, with her various business interests, has a level of complexity to her finances and therefore one might think that a financial remedies application might require a little more thought. The aspiration that ‘Kieran… can keep his personal items and any presents’ sounds attractively straightforward, but would probably require a little more substance/sophistication if it was to be properly put into specific operation within a Court order.
Feature pic : microphones by Rusty Sheriff on Flickr (creative commons – thanks)