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Comment on divorce & family law 

Let’s make divorce quick and simple says senior family law judge

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Quick and simple divorce: that’s the wish of Sir James Munby, England’s most senior family law judge. He has caused a bit of a stir suggesting consenting couples should be able to divorce easily and simply. This need not involve the courts but could be done via signing the necessary documents at a Register Office, cementing the fact that it is often simply an administrative matter rather than a matter for the courts, in much the same way as you would register a marriage, birth or death. Currently, of course, seeking a divorce involves a petition being lodged with the court and the matter ultimately going before a judge for approval, even if it is not contested. This is explained in How to get a UK divorce elsewhere on this site.

Quickie divorce? Not so fast

I can see some merit in removing a divorce from the court system in some circumstances, for instance, where both parties consent and where there are no children, but I do feel this is still fraught with risk. Entering into marriage creates a legal unity that brings with it legal obligations and responsibilities. A party, therefore, can lose the chance of acquiring certain financial benefits if the marriage is then dissolved, like the death in service benefits under your spouse’s pension, for example. In my view it is always essential to seek legal advice before considering divorce so you are fully aware of what you may be losing out on as a result. I mean, how many couples are aware that they can apply to substitute their spouse’s national insurance contributions to their own state pension entitlements even after divorce?

If this shake up of the divorce law was to be introduced, then I do at the very least hope that parties will be given time to take on board legal advice before going ahead. You may not need to involve the court but you should involve a divorce solicitor. Perhaps the system should include an initial registration of an ‘interest to divorce’, but that there is a compulsory period of, say, six weeks before they are invited to sign the dissolution form which would end the marriage. This would be in keeping with the current system where there is a statutory waiting period of six weeks between Decree Nisi and Decree Absolute. This would ensure both parties are not rushing into something without having time to fully contemplate the consequences.

Remove fault in divorce? Yes please

It is a frequently held belief that couples can already opt for a “quickie divorce”. The reality is there is no such thing. Currently, a standard undefended divorce takes between three and five months and you still need to include a reason for the breakdown of the marriage. This leads us on to talk about fault in divorce, something which presumably any new divorce system which can operate without the courts would embrace. Currently, there is no provision in this country to simply file for a divorce because both parties consent (unless they have been separated for two years). This is an area of divorce law that does need reforming, in my view. It seems archaic and unnecessary that couples have to make allegations of adultery or unreasonable behaviour if they want to divorce before being separated for two years, so I do support an introduction of a no-fault divorce, where the only ground should be “irretrievable breakdown”. Many in the family law sector have been calling for this for many years now and it seems to me that this would be a better “win” for the industry to start with than moving some divorces out of courts.

Susan Harwood

Divorce lawyer, Cornwall

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No-fault divorce by consent appeared on the statute book 18 years ago but was never implemented. Perhaps the simplest course of action would be to implement Part II of the Family Law Act 1996, with any amendments necessary to bring it up to date.

By Rory Miln on Tuesday May 6, 2014

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