UK

Simplify 'no-fault' divorce, judge Sir James Munby urges

Man removing wedding ring Image copyright Thinkstock
Image caption Currently, a judge will grant a divorce if a person can prove in court that a marriage has irretrievably broken down

The most senior family judge in England and Wales has said it is time to consider removing the need for a judge to oversee "divorce by consent".

Sir James Munby said "no-fault" divorce could then be handled by a registrar as a purely administrative matter.

Divorce by consent - where both parties want to separate - had in effect existed for 30 years, he said.

One lawyer said the move could be ripe for "abuse", while the government said it was not planning such a change.

The Family Law Act 1996 made provision for no-fault divorce to be introduced in England and Wales, but following opposition to the idea, it was scrapped by Tony Blair's Labour government.

'Seems to work'

Currently, a judge will grant a divorce if a person can prove in court that a marriage has irretrievably broken down - and for that to be accepted, one of five reasons must be proven.

They are adultery, unreasonable behaviour, desertion after two years, two years' separation with the consent of both parties, or five years' separation without mutual consent.

Image caption Sir James Munby said unmarried women were often "thrown on the scrapheap" when relationships ended

Only two years' separation with consent has an element of no-fault, but it must be accepted as the reason by both spouses.

Sir James, who is president of the Family Division of the High Court, told a news conference formally introducing "no fault" would "bring some intellectual honesty to the system".

At present, he said, a district judge had to go through the ritual of assessing whether the cited reason for a divorce was acceptable when both parties often agreed that it was.

In other countries, he said, divorce by consent and where there were no children was treated as an administrative matter, "dealt with by what... one might describe as the registrar of births, deaths, marriages and divorces.

"It seems to work."

Asked whether the move would lead to higher divorce rates, he continued: "It would make divorce no easier than it is at present.

"The reality is that we have, and have had for quite some time in this country, divorce by consent, in the sense that both parties wish there to be a divorce.

"If they're able to establish the grounds for divorce, which it is very easy to establish, the process is essentially a bureaucratic, administrative process, albeit one conducted by a district judge."

But Marilyn Stowe, senior partner at Stowe Family Law, said she believed divorce was "the dissolution of a legally binding contract of marriage" and therefore "should remain a legal process".

"If it is removed from judicial supervision it could also be open to abuse," she said.

"I am in favour of being able to obtain no-fault divorce, perhaps by a shorter period of separation than the current two years, but, equally, I do understand from many years of experience with devastated individuals why many people would wish to retain fault as another reason for the irretrievable breakdown of marriage."

Chris Sherwood, director of policy and external affairs at Relate, said "an administrative divorce" could have advantages when a couple were able to come to an amicable agreement about children, finances and property.

"However, where there is an ongoing dispute, we believe a judge should remain the final arbiter in divorce proceedings as this ensures the settlement remains legally binding."

A Ministry of Justice spokesman said the government had "no current plans to introduce 'no-fault' divorces or amend the laws around cohabitation".

'Entitled to nothing'

In a wide-ranging news conference, Sir James also called for more rights for unmarried women in the event of relationship breakdown.

"One is aware, anecdotally, of these cases of cohabitation which have lasted 20, 30, 35 years and then breakdown, where there are children in the relationship and where the woman has made precisely the same career sacrifices, precisely the same financial sacrifices as many women do as a consequence of marriage," he said.

"At the end of that process, the children if they're below the age of 18, are entitled to certain forms of financial relief but the woman in that case is entitled to nothing at all.

"She may be, to use the vernacular, thrown on the scrapheap... [but] had the parties been married she would have had a very significant claim to very significant financial relief."

Sir James also said reforms of four years ago allowing the media to attend family cases had proved "entirely futile" because journalists did not have access to documents.

He said he planned to consult on whether that situation should be changed, adding: "The media must be allowed to come into the family courts and know what is going on."

Sir James recently oversaw the formation of a single Family Court for England and Wales.

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