Case Note – costs of interested parties in judicial review proceedings: CPRE Kent v Secretary of State for Communities and Local Government UK/SC 2019/0174
Sometimes, it just seems like everyone is doing it. This weekend, Ulrika Jonsson expressed her regrets for cheating on her first husband; the ex-husband of Strictly’s judge Shirley Ballas accused Shirley of “cheating on him with at least 10 men during a stormy marriage”; and comedian Kevin Hart apologised to his family for putting himself “in a bad environment where only bad things happen and they did” in circumstances where someone was trying to make “financial gain” from his actions. To top it, all a new divorce form was introduced by the English Government in the summer with a dedicated section for the details of “the person your partner committed adultery with”.
Of course, all of this blame and guilt is really upsetting for the modern English divorce lawyer because their hearts are set on “no fault divorce” and in that there is now a worthy champion, Ayesha Vardag “Britain’s Top Divorce Lawyer” who will campaign at this year’s Conservative Party Conference to bring an end to the brutality of divorce and, with a PR team that any political party could learn from, this is possibly the best hope for change that has been seen to date.
So, before blame is banished altogether from the divorce process, I thought I would have a last look at it. A short animated film by Brené Brown helps to understand blame; she tells us “blame is simply the discharging of discomfort and pain” and that blame “has an inverse relationship with accountability” - so as we rage (“who’s been sleeping in my bed?”), we lose the ability to hold people accountable. If we spend our time when things go wrong trying only to make the connection about whose fault it is, we lose an opportunity (because of our rage) to be empathetic and thereby we lose control.
Blame already plays only a marginal role in divorce as for many years family court judges have accepted the wisdom that “it takes three to commit adultery” and adultery and behaviour very rarely have any impact at all upon the way in which wealth is divided on divorce.
The general rule “Don’t Get Angry, Get Even” is the divorcing spouse’s fridge magnet of choice. But I would ask - who are they kidding?...even Aristotle understood that anger could be directed “with the right person and to the right degree and at the right time and for the right purpose, and in the right way”.
I have found it difficult to find anyone with anything good to say about blame. However, Gideon Rose, a philosophy professor at Princeton University in the USA, has written that a certain kind of anger can be entirely appropriate and positive and, in some cases, generates motivation. “Common sense suggests that angry people are more likely to get out on the streets and do something” and that where a situation is not just “anger is the morally viable emotional reaction”. I guess this is the kind of anger that will be brought to bear at the Conservative Party Conference.
What troubles me is that this focus on “no fault” may lure us to think that we can take the blame out of divorce, but it tackles only the tip of the iceberg of the problems caused by a lack of general legislative change to family law that would provide stronger guidance to a highly discretionary system and the bare knuckle contest of the adversarial process. So please, never think you can legislate the anger, shame and resentment out of the divorce process; that takes really hard work.
If you have any questions about the issues raised in this blog, please contact a member of our family team.
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