Family Section members recently had the opportunity to put their questions to one of the finest minds in family law. In the first of a two-part feature, in conversation with Elizabeth Noone, Lord Wilson reflects on his career in family law and shares his views on a number of topical issues, including no-fault divorce and ADR.
Choosing a career in family law
I fell into family law by mistake. In 1967, when I started as a pupil in chambers, pupilage was arranged on the ‘old-boy network’. My mum had a friend who was friendly with a head of chambers and my mum got her to ring him up. There was no interview. He knew nothing about me, and I knew nothing about his chambers. In those days, a pupil had to pay his pupil master 100 guineas, so I pitched up in Queen Elizabeth Building with my chequebook and began work.
I knew nothing about family law! Family wasn’t even an optional subject at university in my day, in the early ’60s, so I was very surprised and rather worried about having found myself in a family law set. I remember ringing up my old tutor at university and telling him I had gone to a family law set, to which he replied: ‘Nicholas, that’s a complete dead end. Please go into something like commercial law. You’ll never rise to the top if you’re in family law.’ Yet within a few months of doing family law work, I realised that that was the sort of work I really wanted to do.
What I really enjoy about family law are the complications of dealing with family problems. They are not just intellectual puzzles, they are human problems, and I’m more interested in people than I am in intellectual puzzles. Litigants who are in the middle of grave family problems often can’t see things objectively. Between husband and wife, there may be emotions of anger, resentment, jealousy, hurt, and fear for the future. All this complexity overlays a family law case in a way which simply doesn’t apply, I think, in any other aspects of the law. I find that a challenge.
Many of us in family law have been calling for a reform of the law for 20 years in regard to the absence of rights of cohabiting partners at the end their cohabitation, and it’s so far fallen on deaf ears. Nobody, I’m sure, would suggest that at the end of cohabitation, one party should have rights analogous to those of a married person following divorce - there should be no question of sharing any property. But there ought to be a discretionary jurisdiction, quite defined, and entirely needs-driven, particularly at the end of a long cohabitation when one party to it may be of an age when they can no longer generate an income, or when one party committed their life to the care of children. We have almost got used to what is a very unsatisfactory situation in which we have to analyse the rights of cohabiting people in terms of constructive trusts and propriety estoppels. It is absurd to try to force these disputes within the straitjacket of chancery and other legal principles of that sort. In those circumstances, a discretionary jurisdiction is essential, and I will go on calling for it for as long as I’m around.
Our grounds for divorce - though technically they’re not grounds - were devised in 1970 and are completely out of date. It is a terrible start to legal proceedings designed to sort out a family’s problems in the wake of the breakdown of a marriage that a petition should be served by one party on the other making allegations of fault. It’s embarrassing and humiliating, it makes people angry, and it should be quite unnecessary. There must be a reform of our ‘grounds’ for divorce.
There are really only two options. One would be, simply, to be separated for one year. The problem with that is that it may be difficult for a party to a marriage who wants a divorce to achieve separation at an early stage, for example, for financial reasons. If a couple is required to separate under the same roof, it is a very artificial situation and can be, in my experience, very puzzling and upsetting for everybody, in particular for children. So to have a criterion of separation may not be all that satisfactory.
The other main suggestion, which Lady Hale has made recently, again involves a year, but in a different context. The party to the marriage would file a statement that the marriage has broken down and, if at the end of a year they file another, saying that in their view the marriage has still broken down, there would be a divorce. During that year, no doubt, the parties and their solicitors - if they can afford solicitors - will seek to resolve the financial and other issues generated by the proposed breakdown. But what is very important is that the law shouldn’t require resolution of issues prior to granting the ultimate divorce at the end of the year, because that simply gives one party the ability to obstruct the other on a long-term basis from achieving the divorce. And so, I think that Lady Hale’s proposal has a great deal to recommend it.
There really is no judicial role anymore in relation to a petition for divorce itself, as opposed to the children and financial issues which attend it, and I’m quite sure that the time will come when divorces will be able to be achieved online.
When I started at the bar, a divorce could only be achieved if the petitioner went into the witness box. For several of my first years at the bar, I primarily did undefended divorce cases. I remember in the mid-‘70s hearing of a reform under which some divorces were going to be available on a written basis, and feeling that my whole legal practice was falling to the ground and that I would never be able to recover as a barrister. But one adjusts and I moved into other areas of family law.
Now of course, in effect, no divorces are heard in open court and the role of the district judge is a very cursory one. But that should not mean that anybody, however upset they’ve been one evening, however many glasses of wine they may have taken, should be able to press a button, go for a divorce and get it. There must be a cooling-off period - I would suggest one year. It is too easy to press a button; there must be controls on what people can achieve in relation to their divorce suit by the mere pressing of a button.
ADR in family law
I’m a great believer in mediation for many cases - I was president of the Family Mediators Association for 15 years - but I believe there are a number of cases which are not fit for mediation, and anyone who says mediation is a panacea is, in my view, mistaken. There are parties to a marriage who need to be told by a judge what they have to pay or what they are to receive, or what their rights are in relation to children, and will not reasonably participate in a mediation. But there remains a substantial proportion of cases, which, in my view, can and should be resolved by mediation. Very slowly - far too slowly, in my view - the merits of mediation have come to be recognised.
As regards arbitration, there’s a lot to be said for it: speed, lower costs, less delay and very significantly, less publicity. If I was in the unfortunate position of facing the breakdown of my marriage, however, I would feel concerned about submitting the whole of my future financial life to an adjudication against which it would be so hard to appeal.
Justice of The Supreme Court, The Right Hon Lord Wilson of Culworth
In 1967, after reading jurisprudence at Worcester College, Oxford, Lord Wilson was called to the Bar of England and Wales; and for the next 26 years, first as a junior and ultimately in silk, he practised almost exclusively in the field of family law.
From 1993 until 2005 he was a judge of the Family Division of the High Court. From 2005 until May 2011 he was a judge of the Court of Appeal.
In May 2011 he became a Justice of The Supreme Court.