Divorce to be taken out of the hands of Judges?

This week Sir James Munby, the head of the family court, stated that consideration should be given to the process of divorce being dealt with by a “registrar of births, deaths, marriages and divorce” rather than by Judges and for there to be an introduction of “no-fault” divorce. The comments, which also included suggestions that the injustice faced by cohabiting couples should be tackled, come on the back of the reform of the family justice system which came into effect on 22nd April which brought into being the single Family Court.

How is divorce dealt with now?

Currently, to start divorce proceedings, a Petition is filed at court based upon one of 5 statutory grounds. Unless the proceedings are defended then the procedure is dealt with on paperwork alone (defended divorce is very rare nowadays and, as Sir Munby comments, defended divorces happen so infrequently that they are “invisible”). The couple are not required to attend court for the divorce (unless there are arguments about who should pay the costs of the divorce when one or both parties may attend at court when decree nisi is pronounced to ask the court to deal with the issue of costs). In determining whether the person bringing the divorce proceedings has sufficiently proven the ground upon which they seek to rely, the Judge deals with this by simply considering the petition and the decree nisi application.  The divorce process is dealt with separately to any issues regarding finances or children, which form a separate application to the court if the couple cannot reach an agreement. Therefore it would seem that taking the divorce process out of the hands of the courts is not as radical as it first appears. 

This may then lead to a consideration of whether there should be “no fault” divorce. The 5 grounds a petitioner can reply on at the present time are unreasonable behaviour, adultery, 2 years separation with consent, 5 years separation or desertion. So unless the couple have been separated for less than 2 years, the petition is based on the fault of the one party. So, no matter how mild the allegations may be, this can lead to animosity between the parties. Where there are children involved it may be better if the couple do not have to make allegations against each other, because they do have to remain in each other’s lives for a long time.  If the divorce process is to be moved away from the court, then should there also be a change to allow couples to divorce on the basis that the marriage has simply run its course?

What could this change mean to couples going through divorce?

If there is a change to how divorce is dealt with and it is no longer a matter for the courts, then this may make the process more accessible for couples who wish to deal with it themselves without having legal representation. With changes to legal aid meaning it is no longer available for the majority of family law matters, making the process easier may be a welcome change. Also, if there is to be divorce on a no fault basis, this may make matters less acrimonious. Even if the couple part on good terms, receiving a petition from the court where their ex-partner is making allegations about their behaviour may sour an otherwise amicable spit. The input of a Judge is not required for a couple to marry, so why should it be required for the marriage to be brought to an end?