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Conscious uncoupling? Sir James Munby hints at separating divorce
Sep 29, 2018, 21:52 PM
The proposal that has caught the attention of the media is the suggestion that the petition for divorce might in future be dealt with by a bureaucratic office such as a registrar, rather than by the courts
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May 7, 2014, 04:24 AM
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Chris Martin and Gwyneth Paltrow did it. Now the President of the Family Division wants to do the same with divorce and ancillary relief proceedings.
In his address delivered on 29 April 2014 (which you can read here), Sir James Munby addressed the assembled judges and legal professionals on the changes implemented last week, and then went on to consider what the next developments in family law might be. The one that has caught the attention of the media is the suggestion that the petition for divorce might in future be dealt with by a bureaucratic office such as a registrar, rather than by the courts. He said:
'Has the time not come to uncouple the process of divorce from the process of adjudicating claims for financial relief following divorce, just as we have finally uncoupled the process of divorce from the process of adjudicating disputes about the children following divorce? Indeed, may the time not come when we should at least consider whether the process of divorce still needs to be subject to judicial supervision?'
The President was asked questions about his remarks at a press conference shortly before he delivered his speech (you can read the full transcript here). He elaborated that his comments were only in terms of marriages where there were no children involved and there was no dispute about the need for a divorce.
The first of these two limitations immediately causes me to wonder how much of an impact moving that work out of the court sphere would have, especially when there are increasing numbers of couples opting to marry after the birth of a child. The second limitation could require significant change to the legislation on divorce. Currently a common practice when filing a response to a divorce petition based on unreasonable behaviour is to agree that the marriage has broken down, but not necessarily to agree the reasons relied upon by the petitioning spouse. This is often important if there are allegations of domestic violence, since admissions made in this context may be referred to in any subsequent Children Act proceedings. In such circumstances, would a registrar or other officer be entitled to deal with the divorce on the basis of the agreement that the marriage has irretrievably broken down, in spite of the fact that there is no agreement about the reasons for it? If not, I confidently predict that the number of petitions removed from court would be few. If so, should there be consideration of removing the grounds for divorce entirely, and simply ask the question: do the spouses agree that the marriage has irretrievably broken down?
What is the rationale for suggesting the change in the first place? The President does not give any reason for suggesting that this is something to be considered, beyond that it better reflects the administrative realities of obtaining the relevant paperwork to end a marriage. However there is something profoundly troubling about the idea that this could be done online, as suggested by Joshua Rozenberg at the press conference. The current system offers opportunities to pause and reflect about whether the spouses really wish to end their union. Any move which removes opportunities for reconsideration should be resisted.
Removing divorce petitions from court will have little impact on how spouses conduct themselves in ancillary relief proceedings. By that stage it is often the last thing they are concerned about. Indeed it can sometimes be helpful for these matters to be dealt with under the same roof (more than once I have dealt with a case where a judge has called the court office to establish whether a decree absolute has been granted). Applications for decrees absolute have been deferred for significant periods pending the resolution of ancillary relief proceedings, and then pronounced at the same time as a final ancillary relief order, thereby achieving closure for the parties on all aspects of the marriage at the end of the proceedings. Is there a risk of over-complicating the system by saying that some divorces will be dealt with at one venue, and others elsewhere?
My view is that the amount of investment that would be needed in terms of recruitment and training of registrars or other officers to deal with this simply outweigh the potential benefits to either the court system or the general public. Whether these comments become a reality at some point in the future remains to be seen, but the idea has certainly provoked some considerable interest from the media.
Kate Broadhurst is a barrister at 9 Park Place Chambers. She is a member of the Family Law Bar Association and practices solely in family law with the majority of her work involving public law care issues and private law contact and residence disputes.
Kate frequently represents parents in public law cases and handles residence and contact disputes in private law cases. She also represents local authorities and guardians in public law cases and undertakes some privately funded ancillary relief work.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.