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Reducing family conflict: reform of the legal requirements for divorce
Dec 10, 2018, 16:36 PM
Meta Title :Reducing family conflict: reform of the legal requirements for divorce
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reform consultation process ending today, Prof David Hodson OBE MICArb gives his take on the divorce reform process.
It is not
easy to summarise into a couple of words alas. But I feel strongly about
the three principles and then how they are applied. We need a new divorce
law and process for the mid 21st-century. Not one borrowing
from late 20th century models. Specifically not using
terminology and procedures from our present divorce law. Fundamentally
being an entirely online experience. Crucially allowing a period without
other proceedings at the beginning to reflect and consider and allow every
opportunity to save savable marriages.
The principle of no-fault divorce was adopted
by Parliament in 1996 and nothing has materially changed; there is no need here
for a second referendum! Alongside the campaigning for no-fault divorce,
almost unanimously supported within the family law profession, there was no
debate on the form which that divorce process would then take, perhaps
willfully. Consequently, there are some divisions in the profession about the
preferred new divorce model. This is regrettable
Divorce reform should have three principles.
First, it should respect marriage and the institution
of marriage; this is found in giving every opportunity for reconciliation and
saving savable marriages.
Secondly, it should bury the empty shell of
clearly ended marriages; this is found in avoiding the long inbuilt delays of
1996 and long delays under the present cumbersome procedure and avoid any legal
costs and unnecessary procedure. There is no reason for lawyer involvement in a
Thirdly, it should be a divorce process for the
mid-21st-century. Having failed to introduce no-fault divorce
alongside many westernised jurisdictions in the late 20th century,
we should not simply copy what they have done. Much has moved on.
Specifically we cannot build on the old failed structures. We should not put
new wine into old wineskins. In particular terminology and procedures are
very historic and completely out of touch. By the time of introduction, court
procedures will all be online. The new divorce process must be informed by the
online process. Divorce must be entirely online. This must be a divorce process
for a very different generation to 1996
I propose a model similar to 1996 which was
acceptable to Parliament. A notice leading to a three month period of
reflection and consideration during which there would be no proceedings possible
other than an emergency e.g. interim financial support. After three months the
proceedings proper would be commenced by a second notice, leading to a six
month period for sorting out any separation and financial arrangements. At the
end of that period either would give two weeks notice of intention to apply for
the final divorce. There is no need for separate decrees which is historic. It
would be entirely notice driven and either party or both could give any notice
or make application for the final divorce. There would be no final divorce if
there were ongoing financial proceedings unless by consent; an encouragement to
resolve and settle. There would be no grounds to oppose the final divorce.