This week’s roundup of legal news and commentary focuses on marriage and divorce, land ownership, Brexit, and media regulation, plus law and injustice from around the world.  

Family law 

Divorce reform campaign 

The President of the UK Supreme Court, Lady Hale is the latest prominent figure to lend her public support to a campaign to modernise the divorce laws, in particular to remove the requirement to establish the breakdown of marriage by reference to some aspect of one or other party’s behaviour. Hence the shorthand title “no-fault divorce” (with its perhaps confusing echoes of “no-fault compensation”, which was in essence the proposal of another Supreme Court Justice recently, Lord Sumption, in his lecture on the abolition of personal injuries law). In an interview reported by The Times, Lady Hale said:  

 “My views on adopting a simple and simplified no-fault system for divorce have not changed since I was party to the Law Commission report on grounds for divorce in the 1990s. That report had a ready-made bill attached which could be picked off the shelf. I do [think it is time to look at it again]. 

“Most people, when their marriage is at an end, do not want to separate for two years, or five if the other party to the marriage won’t consent to a divorce, and so they bring proceedings based on either the adultery or behaviour of the other party. That enables, in most cases, them to get a quick divorce. 

“But the basis of that decree hardly ever tells the whole story, who was to blame. It looks as if it is doing so, but it is not and so causes injustice, possibly on both sides.” 

 Reform is also supported by the charity Marriage Foundation, which recently stated on its blog:  

 In reality, there is already divorce by consent or ‘on demand’, but masked by an often painful and sometimes destructive legal ritual. There is also no evidence from this study that the current law does protect marriage. Reform of the divorce law is long overdue. The 1996 reform, passed by Parliament but never implemented, is the best evidence that this was recognised over two decades ago. There is no reason at all why the 1996 legislation should not be the starting template for reform.  

 At present, the Matrimonial Causes Act 1973 requires those seeking divorce to establish, under s 1(1), that the marriage has broken down irretrievably. That is the only “ground” for divorce. However, by subsection (2) the court  

 “shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say— 

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; 

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; 

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; 

(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted; 

(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”). 

Despite the objection of some pedants, these are often regarded as the actual “grounds” for divorce, and most of them involve fault on one side or the other. An attempt to change the law was made in 1996, following a recommendation of the Law Commission (as Lady Hale noted), but it foundered. A House of Commons Briefing Paper (Number 01409, 17 October 2017) on No Fault Divorce recalls that  

Part 2 of the Family Law Act 1996 would have introduced “no-fault divorce” and required the parties to a divorce to attend “information meetings” with a view to encouraging reconciliation where possible. In 2001, following a series of information meeting pilot schemes, the then Government concluded that the provisions were “unworkable”. The relevant provisions in Part 2 have now been repealed.  

The paper notes, at section 3.1, a number of earlier “Calls for no-fault divorce by senior members of the judiciary” including Sir James Munby, President of the Family Division, and Lady Hale herself on several previous occasions.

The fault lies with “fault” 

The requirement to find fault before a marriage can be ended has led to parties lying about each other’s conduct (consensually or otherwise) in order to expedite the divorce process, according to research conducted by Exeter University’s College of Social Sciences and International Studies, led by Professor Liz Trinder and funded by the Nuffield foundation: see Finding Fault? Divorce Law and Practice in England and Wales (summary).  

 The research found that  

  • In 2015, 60% of English and Welsh divorces were granted on adultery or behaviour. In Scotland, where a divorce can be obtained after one year if both parties agree, this figure was 6%.
  • 43% of people who had been identified as being at fault by their spouse disagreed with the reasons cited for the marriage breakdown and 37% of respondents in the court file analysis denied or rebutted the allegations made against them by their spouse. In practice these rebuttals are ignored except in the rare cases where the respondent is able to defend the case (as in the recent case of Owens v Owens). The court did not raise questions about the truth of a petition in any of the 592 case files analysed, despite evidence that respondents disagreed with the claims made.
  • The removal of legal aid for all but a minority of cases (e.g. domestic violence), means that in practice, few people have the financial resources to defend themselves. For these people, getting divorced means accepting that the court’s decision relies on a version of events they do not consider to be true.

 

Common law marriage 

The family lawyers’ association Resolution has issued a fresh warning of the legal risks of cohabiting couples not being properly married. The widespread belief that their relationship will be treated in the same way as a marriage by the courts when resolving the legal problems of breakdown – that it is, in popular parlance, a “common law marriage” – is a myth. (The common law may recognise the relationship but not necessarily in the way people might expect, as discussed in this twitter thread.)  

Resolution reports that the number of unmarried couples living together – or cohabiting – has more than doubled from 1.5m in 1996 to 3.3m in 2017. A survey of 2000 British adults shows a significant lack of understanding about the rights available to these couples should the relationship end. The survey was conducted earlier this month by ComRes (though not yet published on its website). The key findings were:  

  • Two-thirds of people in cohabiting relationships are unaware that there is no such as thing as ‘common-law marriage’ in this country; 
  • Four in five cohabitants agree that the legal rights of cohabiting couples who separate are unclear; 
  • Seventy-nine per cent of the public agree that there is a need for greater legal protection for unmarried couples upon separation; 
  • Eighty-four per cent of the public agree that the Government should take steps to ensure unmarried cohabiting couples are aware that they don’t have the same legal protection as married couples. 

Resolution reported the findings when launching its Cohabitation Awareness Week on 27 November 2017.  It has a useful document, Living Together: Mythbusting Common Law Marriage on its website.  

Citizens Advice have provided a checklist of six key differences between marriage and cohabitation, which was quoted by the BBC in its coverage of this story:  

 Cohabiting vs marriage: Six ways your rights differ 

  1. If one cohabiting partner dies without leaving a will, the surviving partner will not automatically inherit anything – unless the couple jointly own property. A married partner would inherit all or some of the estate 
  2. An unmarried partner who stays at home to care for children cannot make any claims in their own right for property, maintenance or pension-sharing 
  3. Cohabiting partners cannot access their partner’s bank account if they die – whereas married couples may be allowed to withdraw the balance providing the amount is small 
  4. An unmarried couple can separate without going to court, but married couples need to go to a court and get divorced to end the marriage formally 
  5. Cohabiting couples are not legally obliged to support each other financially, but married partners have a legal duty to support each other 
  6. If you are the unmarried partner of a tenant, you have no rights to stay in the accommodation if you are asked to leave – but each married partner has the right to live in the “matrimonial home” 

 

Religious marriage 

Many of the same problems faced by unmarried cohabiting couples when their relationship breaks down are also faced by those whose religious forms of marriage have not been reflected in a civil registration. In this context, it turns out that 61% of women in the UK who have had a nikah, or traditional Muslim wedding ceremony, are not legally married, because they have not gone through a separate civil ceremony or otherwise had their marriages registered under the civil law.  That figure was derived from a survey conducted in connection with the Channel 4 documentary The Truth About Muslim Marriage   

The survey was conducted by Dr Myriam Francois, Research Associate at the Centre of Islamic Studies (CIS) at SOAS University, and Aina Khan, a family lawer, who has launched a campaign to make it compulsory for all marriages to be registered, and a petition to update the law.    

The  results are summarised by Rajnaara Akhtar, Senior Lecturer, Leicester De Montfort University Law School, in a summary available on the Channel 4 website, where you can also see the key findings, as follows:  

  • 78% of those questioned would like a legally recognised marriage 
  • 60% of those questioned had a Nikah only ceremony, with no civil ceremony to make their marriage recognised by the law (3 in 5) 
  • 28% of those who had a Nikah only, did not realise that their Nika ceremony was not legally recognised, and instead thought that they were married with full protection of the law 
  • Nearly 90% of those who had a Nikah only were not advised by an Imam as to what is required to be married in the eyes of the law 
  • More than two thirds of those women who had a NIkah only, did not plan to have one in the future 
  • 10% of those who responded to the survey were in a polygamous relationship, and of those 37% said that they had not consented to it. The vast majority of this 37% who would prefer not to be in a polygamous relationship said that it was done without their knowledge. 
  • 89% of the total number of women surveyed did not wish to be in a polygamous relationship 

 As with the myth of common law marriage (above), the consequences of ignorance of the law can be drastic. According to the Guardian (Most women in UK who have Islamic wedding miss out on legal rights), “One of the consequences of Nikah marriages is the ease with which husbands can enact the ‘triple talaq’, or instant divorce, even by phone or social media.” If their marriage is not recognised in law, they face considerable difficulties in obtaining financial relief when the relationship breaks down. Fundamentally they are in the same position as those who believe they are in a “common law marriage”.  

 

Dividing the spoils is spoiling the divide 

However the parties have been joined, the splitting of the assets when couples divide seems almost as difficult as splitting the atom. Baroness Deech has introduced a private members’ bill in the House of Lords to end the “disproportionate” awards to some former spouses and to make prenuptial contracts binding. These reforms are described as aiming to “end the ‘meal ticket for life’ maintenance awards” that some courts are allegedly making on divorce, and align the law more closely with the “clean break” favoured in Scotland’s laws by restricting spousal maintenance in most cases to five years. Campaigning in support of Lady Deech’s proposals (along with the no-fault divorce proposals), the Times quotes her as saying:  

 “It is no credit to English law and damaging to the position of all women to find that the wives of foreign oligarchs are having their ‘needs’ — such as £2 million a year for travel, £100,000 for handbags — taken seriously by judges, while women who are supporting themselves in their jobs at the time of divorce are treated less generously than those who have given up work.”

Maintenance, said Lady Deech, should be limited to five years unless exceptional hardship was established. “As long as we expect women to have dignity and go out to work, then it is not right to say ‘this man must keep you for the rest of your life’.”  

The New Statesman criticised these proposals as essentially mysogynistic: The Times campaign to “modernise” divorce law is an attack on women Columnist Catherine Lafferty  says;  

 It amounts to a vindictive war on middle-aged women. Picture what would happen if the Times were to get its way. Men would be able to dump wives, who may have sacrificed their careers to bear and raise children, on the cheap. Women, whose CVs may be bereft of a history of regular employment, will be compelled to start again in their fifties and sixties, forced into an impossible competition with far younger workers. 

  

Land law 

Land registry data maps reveal spread of corporate ownership 

Companies and the public sector own around a third of England and Wales, according to open data analysed by Anna Powell-Smith at Who Owns England. She has mapped 1.8 million of the 3.5 million land titles released by the Land Registry as Commercial and Corporate Ownership Data .

You can spot which addresses (identified by postcode) are in public or corporate ownership as either freeholds (orange spots) or leaseholds (blue spots). She also lists the top ten owners and how many plots they own. What this may not suggest is the area owned, since it analyses the number of plots of land, some of which may be small. But it goes a long way to helping understand who owns Britain.

(A separate dataset from the LR shows foreign or overseas / offshore ownership, something being analysed in a separate project. And also, we believe, by Private Eye.)  

  

Media regulation 

Leveson 2 in the offing?  

The Guardian reports that  “Sir Brian Leveson has been asked to advise ministers on holding the second part of [his] public inquiry into the British press and is reviewing submissions made by newspapers on future regulation of the sector.

The first part of the Leveson Inquiry reported in 2012, making a number of recommendations about media regulation.

The second part was postponed pending the completion of criminal proceedings arising out of unlawful conduct alleged, and in some cases proved, against journalists, police officers and others. But part two, which would look at the relationship between the media and police and corporate malpractice in the industry, is also dependent on the political will to make it happen.

A consultation by the Department of Digital, Culture, Media and Sport closed in January this year, after ten weeks and more than 140,000 responses.  It asked whether the second part of the inquiry should proceed and whether legislative provisions designed to implement recommendations of the first report should be brought into force. (see Weekly Notes – 23 January 2017)  

 The Guardian reveals that  

The judge has also been asked to consider responses to section 40 of the Crime and Courts Act 2013, which has not been enacted [sic. In fact it has – they mean commenced] but if introduced would force newspapers to cover the legal costs of the claimant in a libel case unless they joined an approved regulator and offered low-cost arbitration. 

 No national newspaper has signed up to an approved regulator. The majority of newspapers are members of Ipso, which is not formally recognised by the Press Regulation Panel, although the Guardian and Financial Times regulate themselves. 

See also:  Transparency Project, Press Regulation: What are we waiting for now? (This was written almost a year ago, yet the only thing that’s changed is that the News Media Association has failed in its claim for judicial review of the Press Recognition Panel’s decision to recognise rival regulator IMPRESS as fully Leveson-compliant, unlike IPSO.)

 

Brexit 

Will of people handing power to judges 

According to a report of his talk at the EU Withdrawal Bill Summit, organised by City & Financial at London’s Guildhall, Lord Neuberger has warned that the “EU Withdrawal Bill will remove power from the UK parliament and hand it to the judiciary”. He is quoted by Eduardo Reyes in the Law Society Gazette as saying:  

 ‘The principle behind withdrawal was to restore parliamentary authority. Yet the process can be argued to have weakened, not strengthened, parliament against the two unelected branches.’ 

Some of parliament’s loss of power, Neuberger said, came from its own inaction. MPs ‘sat on their hands’ on questions affecting its own authority, which led to the courts deciding a key point through the Gina Miller case. 

Central to Neuberger’s view is the so-called ‘Henry VIII’ powers, especially as contained in Clause 6 of the bill. Clause 6, unless ‘reworked’, Neuberger warned, would mean, ‘UK judges, not parliament, will make judgements on diplomacy, economics and law – classically policy areas for parliament’. 

‘Parliament would be supreme in name only,’ he warned. ‘I am not saying this is a good thing or a bad thing,’ he said. ‘I’m not concerned that judges are being pushed in to the limelight. I am concerned that those doing the pushing don’t realise it.’ 

 

The Brexit papers 

David Allen Green has been charting the history of the now infamous 58 sector analyses of the economic impact of Brexit, which the Department for Exiting the EU has been forced by parliamentary vote to publish, and which now appear to have been significantly redacted and, perhaps also, significantly over-sold.  

 A redacted form of the analyses has now been provided to the Brexit committee. Whether this disclosure is sufficient to avoid a charge of contempt is not yet known. And it is also not yet apparent whether the committee itself will publish the documents. 

 See, in the FT (£) The Telling Story of the 58 Brexit sector cases  

 Also his Jack of Kent blog post, The early history of the 58 Brexit sector analyses 

  

 

Law (and injustice) from around the world 

Bosnia 

War crimes conviction

The Bosnian Serb army commander Ratko Mladić has been convicted of war crimes and genocide at the United Nations-backed international criminal tribunal for the former Yugoslavia (ICTY) in The Hague. According to The Guardian:  

The one-time fugitive from international justice faced 11 charges, two of genocide, five of crimes against humanity and four of violations of the laws or customs of war. He was cleared of one count of genocide, but found guilty of all other charges. The separate counts related to “ethnic cleansing” operations in Bosnia, sniping and shelling attacks on besieged civilians in Sarajevo, the massacre of Muslim men and boys at Srebrenica and taking UN personnel hostage in an attempt to deter Nato airstrikes.  

The trial in The Hague, which took 530 days across more than four years, is arguably the most significant war crimes case in Europe since the Nuremberg trials, in part because of the scale of the atrocities involved. Almost 600 people gave evidence for the prosecution and defence, including survivors of the conflict. 

Delivering the verdicts, judge Alphons Orie said Mladić’s crimes “rank among the most heinous known to humankind and include genocide and extermination”. 

 Mladic may think himself unlucky to have been finally tracked down after many years and tried for something done in the 1990s. But the Nuremberg trials took years to complete. Justice is slow but sure, when it comes to war crimes. Or rather if. Because most go free, these days, argues Jonathan Freedland, also in the Guardian: Ratko Mladić was unlucky. These days most war criminals go free 

See also: Human Rights Watch: ICTY/Bosnia: Life Sentence for Ratko Mladic 

 

Germany

Online content regulation 

The Act to Improve Enforcement of the Law in Social Networks or Network Enforcement Act (NetzDG), which targets online hate crimes and false news reports, came into effect in Germany on 1 October 2017 but its provisions will not take full effect until 1 January 2018. In a post on Lawfare, Evelyn Douek explains the background and purpose of the Law and why it has been so widely criticised.  

Colloquially called the “Facebook law” in Germany, it requires popular social media networks to remove or block content that is “manifestly” unlawful by reference to provisions of the German Criminal Code, which include things like Nazi propaganda and child pornography but also less well defined conduct such as insult, defamation, incitement to hatred, and dissemination of depictions of violence.  

There will be an easy reporting mechanism, but it will require extensive and costly compliance by the networks – which some may think no bad thing, to be fair. (As one German politician noted, “[e]xperience has shown that without political pressure the large platform operators will not fulfill their obligations.” ) 

The main criticisms seem to be the vagueness of the definition of what must be removed, and the chilling effect the regulation will have on freedom of expression.  

 

Italy  

Michelangelo’s David: naked theft of art rights

A court in Florence has upheld the claim on behalf of the city’s Galleria dell’Accademia alleging copyright infringement by a tour company that used an image of Michelangelo’s statue of David, the museum’s star exhibit, to use on marketing literature for overpriced tours of the museum. (The tours cost €45 whereas the tickets at the door only cost €8.)  

The court accepted the museum’s argument that it is the right of the institution that holds the work to authorise reproduction images only on request and with payment of an agreed fee. The gallery director said “Now many other museums who have been victims of the plague of tickets sold at inflated prices can take this path to defeat this scam,” she said. 

But presumably it will also enable museums to control and exploit the sale of merchandise using iconic images of famous art works and the like.  

The Guardian, reporting the story, said the director of the Uffizi gallery in Florence, which “brims with renaissance masterpieces”, planned to pursue similar claims. 

For a more legally geeky analysis, head over to the IPKat blog for analysis by Eleonora Rosati, Florence court prohibits unauthorized commercial use of David’s image.  She explains that it was the  Avvocatura dello Stato, this being the body responsible for advising and representing the Italian state (including in legal proceedings), that brought the proceedings. Moreover, the right being protected is not a simply copyright. It is more in the nature of a cultural right vesting in the state, under the Italian Cultural Heritage Code, also known as Codice Urbani. As she explains:  

Article 106 of the Code sets the general principle that for cultural heritage items subject to their own control, the State, the various Italian regions and local public bodies may allow individual applicants to use such items for purposes compatible with their own cultural value, eg by means of acts of reproduction.

This means that for-profit uses of cultural heritage under the responsibility of Italian public administration are not generally free: instead, they are subject to preventive authorization.

Articles 107 and 108 of the Code provide that the competent public administration may allow third-party uses of an item – including an artwork – belonging to Italian cultural heritage, subject to the payment of royalties to be determined on the basis of – among other things – the type of use requested and the possible economic gain that the user would obtain from the use of the item.

This said, authorization is not required in each and every case. Article 108(3-bis) clarifies in fact that non-profit uses of cultural heritage items for purposes of study, research, freedom of expression or creative expression, and promotion of the knowledge of cultural heritage do not require authorization.

[*] One thing the museum or the civic authorities which manage it should think of doing is creating a more up to date and prominent (seo-friendly) website. You can find the real website of the museum with some difficulty; but when you search on, eg, Google, the results are flooded with tourist organisations offering to manage your access to the museum at no doubt commercial prices, though they may not be as exploitative as the defendants to this action. Just a thought.  

 

And finally… Tweet of the Week

is a helpful explainer from Richard Corbett MEP of the Irish Brexit border paradox:

 

 

There, bordering on the absurd, we must leave it for now. More next week. Thanks for following and for all the links and suggestions on Twitter. 

This post was written by Paul Magrath, ICLR blog editor, and does not necessarily represent the views of ICLR as an organisation.