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Column: Modernising divorce language has to be part of forthcoming legal reforms

Dec 7, 2018, 10:37 AM
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Date : Nov 27, 2018, 04:06 AM
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In last month’s ‘Mediation Matters’ blog, Jane Robey explained how family mediators welcome the government’s consultation on changes to divorce laws. Reforms may be overdue, but if they are well-constructed and implemented effectively they have the potential to not only transform the landscape of family law practice, but to improve the future prospects of those caught in the eye of the divorce storm.

In responding to the consultation, mediators’ comments are naturally geared towards the impact of current and future divorce laws upon our professional practice.

We know mediation in its own right plays a relatively small role in the overall divorce process, although it is worth noting that family mediators sometimes discuss and agree with couples the grounds for their divorce. Depending on their shape, government reforms may in fact even get rid of this particular mediator role, by removing an area of potential conflict, and in my view this would be most welcome.

Removing the concept of ‘blame’ from the divorce process must form a fundamental cornerstone of any law reform, as it would considerably reduce the conflict between parties. Divorce laws which mean someone has to be proved ‘at fault’ - even when a couple agrees on the need to separate - creates a bidding war whicht hen often escalates. It can spiral out of control into a full-blown courtroom battle brimming with resentment and anger. The negative impact this has on the future of everyone in the family is immense. Then there are the financial effects of protracted litigation: it costs families a fortune.  

Mediators usually find that couples who, for whatever reason, have decided to separate just want to get on with it, so they can make a fresh start. The current legal need to prove a spouse’s ‘unreasonable behaviour’ simply fuels bad feeling. From a professional perspective, I believe that removal of blame will improve the willingness of people to take part in mediation, as they will be more emotionally ready to do so. This would increase the numbers of divorcing couples using the process. So a by-product of divorce law reform would be a boost for government objectives of improving the take-up of family mediation. 

I would welcome the provision for notice to be given jointly by both parties to the marriage, not only as this could considerably reduce conflict, but also because it could set the scene for further joint applications (for example inrelation to child arrangements and finance settlements.) In turn, this could allow for rules to require both parties to be required to attend MIAMs.

There’s another element of the divorce process which I urge Ministers to address as part of this process – and that’s the language currently used. The last thing people need at their time of crisis is to have to get to grips with a new set of legal jargon – words like ‘affidavit’. ‘plaintiff’ and ‘respondent’ - simply in order to move on with their lives. Let’s hope Ministers take the opportunity of legal reform to also bring the language of divorce into the 21stcentury, using words we can all understand at this time of huge stress and anxiety.

Hand-in-hand with updating language goes the development of new online tools to simplify the routes people need to take to achieve their divorce. The innovative digital work being undertaken by HM Courts and Tribunal Service in developing online tools is impressive, so Ministers need to work with MoJ digital experts to ensure future processes are as streamlined as possible. Bringing these processes online makes them much more accessible which, by definition, can provide better access to justice and swifter resolution toseemingly-complicated procedures.

Facing a divorce is one of the biggest crisis points in anyone’s life, so the process must be made as simple and straightforward as possible. Current laws have a negative effect on the culture of divorce, and Ministers are right to focus their reform efforts on ensuring a less confrontational process. The consultation closes on 10 December, after which I look forward to the swift implementation of changes without Brexit-related impediment or delay.

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