After a breakup, a woman wonders if traditional romance is a trap, and finds that the ordinary is the most romantic gesture of all.
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Report comparing divorce laws in other jurisdictions makes fascinating reading
The Nuffield Foundation has published a report presenting the findings of a project to explore the legal and procedural details of the divorce process in selected other jurisdictions. The report is designed to inform the current Ministry of Justice (‘MoJ’) consultation on reform of the ground for divorce and dissolution in England & Wales.
As the report explains, the MoJ is proposing that the sole ground for divorce of irretrievable breakdown should be evidenced by a new notification system or waiting period. The report examines what lessons can be drawn from the experience of notification and/or separation-based divorce in eight comparable jurisdictions: Australia, California, Colorado, Finland, Germany, New Zealand, Spain and Sweden.
Having never really studied divorce law in other jurisdictions, I find the report quite fascinating, both in terms of how similar different jurisdictions are in some respects, and how different they are in other respects. Overall, though, the report makes the important finding that jurisdictions are converging “towards recognition that a divorce must be granted where one or both parties insists that the marriage is over and away from scrutiny of a decision to divorce according to objective standards.” This is surely excellent news for the people of the countries/states concerned and, as the report says, indicates that the MoJ’s proposal to remove fault is fully consistent with international trends.
The report looks at various aspects of divorce law and procedure in the various jurisdictions, ranging from the grounds of divorce, through the different parts of the process, to whether the divorce can be opposed, and a number of other details.
The centrepiece of the report is a tabular summary of the law and procedure in England and Wales (at present) and the eight other jurisdictions. This sets out in an easy to read form all of the aspects mentioned above. To pick out a couple of the interesting facts at random, we find that most of the other jurisdictions have not had major reforms for almost as long as we have here (suggesting that we are rather behind the times), that Spain, Sweden and Finland do not have any grounds for divorce (and no available defences), and that in all countries/states save for England and Wales and Germany the court must approve or determine child arrangements before the divorce goes through (this was also the case here until 2014).
The report then examines various aspects of the divorce law and procedure in the different jurisdictions, and sets out possible implications for the MoJ to consider when deciding exactly what form our new divorce system should take.
I won’t comment on all of the points here, as I have not given detailed consideration to all of the various details of any new system. However, I do find the following points interesting:
- That there is a trend away from requiring any ground for divorce at all. Here, it is expected that we will keep irretrievable breakdown as the ground for divorce, but do we even need that? As the report says, in Spain, Sweden and Finland divorce is a right and, in the absence of a divorce ground, no proof is required.
- Most other countries do not have our two-part divorce process (decree nisi and decree absolute). Do we really need this?
- Our proposed six month notification period is in line with many other jurisdictions. As I have mentioned before, I wonder whether that is too long, although I don’t expect the MoJ/government to agree to a shorter period.
- The report says that in some jurisdictions defence of the marriage remains possible in theory, but is futile in practice. Quite. No jurisdiction has a specific provision to allow a respondent to register their wish to remain married. This must be the right way.
- Lastly, the report finds that a specific provision on the minimum duration of marriage is relatively unusual. Here, we have a bar on divorce petitions within one year of the marriage, and the government is proposing that that be kept. But is it really necessary? Clearly, other countries/states think not. After all, it is quite possible (and not unheard of) for the parties to a marriage to realise very soon after the wedding that they have made a mistake. Why should they be forced to lose one year of their lives because of a mistake?
Ok, I’ll leave it there. For further details, you can find the full report here.
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Author: John Bolch
Rent-a-Dog
Canine company by the hour
On my last trip to Costa Rica, I was walking along the beach in a small town on the Atlantic coast that’s best known as a hot spot for surfing. There were a number of dogs playing on the beach—catching sticks and Frisbees, sniffing the tourists, and generally having a good time. The dogs may have been strays, or they may have belonged to local residents—the people playing with them did not appear to be their owners. But in any case, the dogs were apparently healthy, friendly, and well cared-for. I’ve always liked dogs, though for a variety of reasons I can’t see myself owning one. Still, that afternoon on the beach, I was thinking that it would be great to have a dog to play with for just a few hours, and that some enterprising person ought to set up a little dog-rental business there to cater to people such as myself who could not bring their own dogs to this remote location.
I filed this idea away in the back of my head along with all the other goofy and implausible notions I’ve come up with over the years. And then one day, I read an article in a local newspaper about a growing trend at luxury hotels and resorts around the world: free (or inexpensive) loaner dogs for the guests. Maybe my idea wasn’t so goofy after all. A few web searches turned up a number of businesses that loan or rent dogs for short periods of time—often, though not always, as a way for tourists to have canine companionship away from home. This idea seemed to have legs, so I thought it merited a bit more research.
BYOD
Although it seems a bit crude to compare rental dogs with rental cars, the concepts are similar at least in the sense that someone else is responsible for major care and maintenance. I’d never expect to rent a car for a weekend and then be asked to take it in for an oil change or a tune-up; and when borrowing or renting a dog, you don’t worry about grooming, bathing, or veterinary care. But these factors are rarely the major attraction to potential renters. Some people like having a dog with them as a way of breaking the ice when meeting other humans (a role dogs perform nearly as well as babies). In other cases, it’s simply a matter of wanting company, a hiking companion, or a playmate. Either way, the availability of loaner dogs is increasingly becoming a competitive advantage for hotels in areas where guests like to spend a lot of time outdoors.
Dog lovers on vacation may be the most visible niche market for rent-a-dog services, but there are numerous other examples. Specially trained guard dogs and hunting dogs are available in some areas for people who are unable to care for such animals year-round but need their special services on occasion. And in some Asian cities, such as Tokyo and Hong Kong, where it’s extremely difficult to find dog-friendly housing, rental services enable people to spend quality time with dogs.
Increasingly, animal shelters and pet stores are using dog rental (or loans) as a way of encouraging adoptions: people borrow pets for a few days, become attached to them, and decide to keep them. Conversely, many people who rent dogs do so in order to make sure the animals will fit into their households and lifestyles before making a permanent commitment. If you’ve lived with a dog for a week and find that it doesn’t get along with your other pets, bothers the neighbors with its barking, or causes a severe allergic reaction, it’s nice to know that you can return the dog with no leash attached, so to speak.
Barking Mad
Many people, not surprisingly, think rent-a-dog programs are an atrociously bad idea. I’ve frequently read complaints to the effect that a dog is a living being, not an inanimate object like a car or a library book that can be passed from owner to owner without any ethical difficulty. Critics of dog-rental services worry that renters may not be trustworthy, that being handled by many different people can create stress and confusion for the dogs, and that dogs who are frequently rented out may have difficulty bonding with their owners. Some people go so far as to say that if you’re not willing to undertake the responsibility of full-time dog ownership, you have no business becoming a short-term steward either.
I certainly agree that dogs should not be loaned or rented out haphazardly; owners have an obligation to ensure that potential borrowers or renters can safely and responsibly care for the dog. But many owners hire dog walkers or dog sitters, or place their dogs in kennels when they’re out of town, so I think there’s a reasonable precedent for giving someone else temporary care of a dog—though, of course, some dogs are more amenable to this sort of lifestyle than others. Arguably, dogs may benefit from increased exercise and socialization with humans, as long as the rental periods are not too long or too frequent.
I have not yet found any programs that rent pets other than dogs. As a cat owner, I think cats would tend to be temperamentally ill-suited to such drastic changes. On the other hand, I certainly enjoy visiting bookstores where cats are available to sit on the laps of browsers. So here’s my idea: an internet café where you can rent a computer with a mouse for $10 an hour, or a computer with a cat for $15. Bring your own lap.
Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on November 23, 2004.
Image credit: Bruce Emmerling [CC BY-SA 4.0], via Wikimedia Commons
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Author: Joe Kissell
World Poetry Day
UNESCO declared March 21 to be World Poetry Day back in 1999, and who am I to argue with the United Nations? It’s a day meant to promote the writing, reading, reciting, teaching, and preservation of poetry, so go generate or consume some lovely words today. I’m one of those uncouth souls who think poetry ought to actually rhyme, or at least have some meaningful rhythm. (I know, so gauche, right?) That prejudice aside, here’s a pro tip: taking an ordinary prose sentence and adding arbitrary line breaks and indentation doesn’t make it poetry, even though a lot of what’s sold as poetry is precisely that. You have to put some work into those words, people. At least give it a solid effort today.
Image credit: Florence Earle Coates [Public domain], via Wikimedia Commons
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Author: Joe Kissell
States Seek Financial Relief for Family Caregivers
Lawmakers in California and at least seven other states want to provide state income tax credits for families that need help with home caregiving.
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In re Marriage of C.T. and R.B.
(California Court of Appeal) – Reversed a child custody order on the basis that it was not supported by the evidence. The order would have changed primary physical custody from the mother in California to the father in Arkansas.
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Mediation is more than a tick-box exercise
Having just recently completed my re-accreditation with the Family Mediation Council as an accredited Family Mediator, I noted with interest an article in The Times yesterday titled: Divorce lawyers should stop treating mediation as a box-ticking exercise.
I totally agree with the author. Sadly, family lawyers are not actively encouraging and promoting dispute resolution options such as mediation.
My experience from carrying out initial assessment meetings with potential mediation clients that have been referred by their solicitor is that they do not always come to the meeting with an open mind. Instead, they have been told by their solicitor that they just need to show up, get the mediator to sign off the form and then get onto the court case; reducing mediation to a tick box exercise.
This is disheartening. As family lawyers, we have a duty to our clients to give them unbiased advice on all options (depending upon the circumstances), to encourage and promote out of court dispute resolution, where appropriate. This approach is far more cost effective and will allow for a smarter, more dignified divorce/separation.
Some family lawyers are not putting their clients’ needs first but are instead, protecting their own income stream. It’s plain and simple: every case that is converted into a mediation matter is potentially one less litigation case for the lawyer, thus a decrease in fee income.
This is a great shame. Using mediation helps separated couples to make their own informed decisions as to what is best for them, their children and families. It reduces conflict, avoids court proceedings, is quicker and much more cost-effective. Most importantly, it allows for ongoing communication between the separating couple, which is vital. Mediation is child focused and looks at the impact of all possible resolutions on the children of the family. Although not suitable and safe in every case, its use in family law should be championed and not dismissed.
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Author: Sushma Kotecha
Mother’s failed appeal indicates difficulty of overturning findings of fact
Often in proceedings relating to arrangements for children following parental separation one party will make allegations against the other that are so serious that they could have a crucial bearing upon the outcome of the case. Obviously, the court must make findings in relation to those allegations, and it often does so at a ‘fact-finding’ hearing.
As we will see in a moment, it is very difficult to overturn the findings of the court, and it is therefore essential that each party put their case as well as possible at the fact-finding hearing. This makes me wonder just how parents manage when they don’t have the benefit of legal representation – one can imagine many cases turning out quite differently than they would have done had representation been available (although I should point out that legal aid, and therefore legal representation, should be available if the allegations involve domestic abuse).
None of which is intended to be any sort of criticism of the mother or her legal team in the case M v F (Appeal : Fact Finding), which is the subject of this post – I mention the case merely, as the title of this post states, to indicate the difficulty that parties face if the court’s findings go against them.
Now there was a lot going on in M v F, in particular regarding the details of the allegations, and I don’t need to go into those details for the purpose of this post (and in any event, to do so would make this post unmanageably long). Instead, I will take the unusual (for me) course of concentrating on the applicable law, rather than on the facts or findings of the case itself.
Basically the case concerned cross-applications by the father for a child arrangements order, and by the mother for a non-molestation order. The mother made various allegations against the father, including that he had used serious violence against her, that he had used controlling and coercive and abusive behaviour, and that he had used force against the child. The father denied the allegations.
A fact-finding hearing took place. Essentially the court found most of the allegations unproved. In particular the court found that the father did not pose any direct risk of physical harm to the child, or any psychological risk to the mother. The mother applied for permission to appeal against the findings.
The mother’s application went before Mr Justice Williams in the High Court. He set out the law on appeals against findings of fact, including the following points:
- Permission to appeal may be given only where the court considers that the appeal would have a real prospect of success, or there is some other compelling reason why the appeal should be heard. (Incidentally, in the report it states that Mr Justice Williams used the word ‘and’, instead of ‘or’. If so, that is, with respect, incorrect.)
- In the absence of some other identifiable error, such as a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.
- Where a question of fact has been tried by a judge, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion.
- The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.
As will be seen, this sets a high bar for the appellant. In particular, the law recognises the advantage that the original judge had in hearing the evidence first-hand – the appellate court can only make its decision based upon the paper, or printed, evidence, including the transcript of the fact-finding hearing. And look at the words I have highlighted in paragraph 2 above. It doesn’t matter if the judge hearing the appeal may have made different findings: they should only interfere if the original findings cannot reasonably be explained or justified.
Back to the case itself, Mr Justice Williams did not consider that any of the mother’s grounds of appeal had a realistic prospect of success in demonstrating either that the original findings were wrong, or that they were unjust by reason of a procedural irregularity. Accordingly, he refused the mother permission to appeal.
You can read a full report of the judgment here.
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Author: John Bolch
Gross National Happiness
Bhutan’s bottom line
The tiny nation of Bhutan, located between its gigantic neighbors, China and India, has a different way of measuring its success. Known as gross national happiness, this measurement of the quality of its citizens lives’ as opposed to their productivity, turns the usual economic indicator, gross domestic product (GDP), on its ear.
Gross Domestic Products
Also known as gross national product (GNP), gross domestic product refers to the total value of goods and services produced by a country within a certain time period. This measurement is meant to show the size of a country’s economy, and is sometimes used to track the standard of living, as it is assumed that increased productivity translates into better living conditions for citizens.
There are some flaws to this approach, however. Since GDP does not discriminate between positive and negative causes of productivity, a natural disaster can add to the GDP (because of the resources and work put into counteracting its effects), although the event itself is hardly in the best interests of society. Similarly, environmental catastrophes (such as oil spills) and the ravages of war inflate the GDP while having an ill effect on human life and the environment.
Another deficiency of using the GDP as a measurement of national advancement is that it has an extremely narrow focus. For example, using the GDP measurement, the unpaid work of child rearing and housekeeping has no value, nor do non-monetary transactions such as bartering for goods and services.
In short, the whole sphere of human existence cannot be reflected using the GDP, and in fact, GDP distorts the picture because it counts all economic activity as positive, without the counterbalance of what has been lost in terms of environmental damage and human suffering.
For these reasons, economists have come up with another measure of economic growth—the Genuine Progress Indicator, or GPI. This indicator takes into account both the positive and negative effects of a country’s economic activity, in theory providing a much clearer picture of the well-being of its citizens.
WWBD (What Would Buddha Do)?
In much the same vein, in 1972, the king of Bhutan, Jigme Singye Wangchuck, coined the term gross national happiness (GNH) to describe the path Bhutan would take to economic development. Drawing on the spiritual tradition of Tibetan Buddhism, GNH is designed to balance economic progress with the well being of the Bhutanese people.
The four main pillars of Gross National Happiness are economic self-reliance, environmental preservation, cultural promotion, and good governance. These four pillars are further extrapolated into nine domains: psychological well-being, health, education, time use, cultural diversity and resilience, good governance, community vitality, ecological diversity and resilience, and living standards.
To determine how well the country is meeting these goals, and to determine future policy decisions, Bhutan conducted surveys of its population in 2008, 2010, and 2015. The results were assessed using the Gross National Happiness Index, which was developed in cooperation with researchers from Oxford University.
In 2011, the UN General Assembly passed a resolution entitled “Happiness: towards a holistic approach to development,” highlighting Bhutan’s focus on GNH as a model for other nations to follow. In 2012, UN Secretary General Ban Ki-Moon and Bhutan’s Prime Minister organized a High Level Meeting on the subject “Well-being and Happiness: Defining a New Economic Paradigm” at which the first World Happiness Report was issued. Subsequently, the United Nations designated March 20th as International Day of Happiness.
A Nepal-ing Situation
While Bhutan is held up as a model for other countries to follow in creating a more humane economy, it has not been entirely successful in creating its own peaceful and productive society since Gross National Happiness was first introduced. The government’s concern with conserving the country’s cultural traditions, and restricting outside influences, has led in the past to restrictions on access to media and a traditional dress requirement (although this has eased a bit in recent years).
Of more concern is the mass exodus in 1990 of 100,000 citizens of Nepalese descent and Hindu faith in response to an attempt by the government to assimilate this group into the dominant Bhutanese culture, which led to protests and subsequent harsh treatment in punishment of the protests. These refugees lived for many years in camps in Nepal, while Bhutan, Nepal, and India failed to agree on how they should be accommodated. In 2008 various countries—the United States, Canada, Australia, the Netherlands, Denmark, New Zealand, and Norway—began taking them in, with over 112,000 of the refugees resettled abroad to date.
I Can’t Believe It’s Not Bhutan
While the past implementation of Gross National Happiness in Bhutan led to repressive policies, the recent introduction of democratic elements into Bhutan’s government (elections began in 2007) is seen as a positive trend for its living up to the ideal of GNH. And that ideal is still a worthy goal; there is something very attractive about belonging to a society that views the pursuit of gross national happiness as its prime objective. It would be extremely interesting to see a shift to this kind of thinking in other countries: how would our world change if the United States, the European Union, and other large economies implemented this policy? It’s impossible to know for sure, but it’s nice to think about a world in which success is measured in more than dollar signs.
Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on August 21, 2006.
Image credit: Mario Biondi, Italian writer [Public domain], via Wikimedia Commons
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Author: Morgen Jahnke
International Day of Happiness
You don’t have to be happy all day today. No one’s going to force you. But the International Day of Happiness, established by the United Nations in 2013, is more than just a pipe dream that people will try to be happier for one day a year. It’s part of a campaign to “end poverty, reduce inequality, and protect our planet,” all things that should be conducive to greater overall happiness. And, just as Bhutan doesn’t measure its progress by GDP but rather Gross National Happiness, today is a day to remember that there’s much more to happiness, and to a fulfilling life, than financial achievement.
Image credit: Juniperusco [CC BY-SA 4.0], via Wikimedia Commons
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Author: Joe Kissell