The President of the Family Division, Sir James Munby has caused a few waves by saying that radical reform of the family justice system is needed to counteract the negative impact of Legal Aid cuts. He has even gone so far as to suggest that maybe divorce itself should be separated from the judicial system and that the time is right to implement a no-fault split.
When I started practising law in the early 1990s, they were trying to introduce no fault divorces with people having to attend “information sessions”. It didn’t work then, and as we have seen more recently, trying to force people to mediate hasn’t really worked either. We are all for this debate being had and applaud the sensible comments but, the most important thing is to reform the right elements of the law, for the right reasons.
My view is that divorce already is, and rightly should be, relatively simple for the vast majority. It is hard enough emotionally without making the process unnecessarily painful also.
It’s not really the divorce itself that is complicated it’s sorting out finances and agreeing a divorce settlement, or coming to an agreement about where the children will live and when they will spend time with each parent, that is the cause of conflict.
Would no fault divorce devalue marriage?
No fault divorce is something we have been mentioning in these blogs on and off for the past three years or so. Ironically, in the United States, where it has been an option for some years, there is a backlash with growing calls for it to be outlawed as it devalues the sanctity of marriage and makes it too easy for couples to go their separate ways without trying to maintain a stable home.
The concept of a no fault divorce is sound, and might create less tension around the divorce. The current system involves finger-pointing as you have to give examples of what the other person has done to lead to the breakdown of the marriage, or alternatively wait a number of years before a divorce can be granted. Either approach can stoke feelings and can enflame an already volatile situation.
And if by creating a no fault divorce we can free up court time to deal with other important family law issues I am all for that, although I’m not really convinced that’s how things would work out.
Would marriage lessons cut the divorce rate?
Here’s a thought: instead of looking at the divorce, maybe it shouldn’t be so easy to get married. Would ensuring people know what the consequences of getting married are before they go ahead with a big dress and party be better? At the same time, it would be vital to point out that there is little legal protection for cohabitees not formally joined in marriage. Maybe people would re-evaluate their situation more seriously and think long and hard before making life-changing decisions.
It certainly shouldn’t be too easy to get divorced. Marriage is an important legal status. But equally there shouldn’t be unnecessary barriers placed in the way of a couple who have decided their relationship is over. The more amicable we can make the divorce process the less the individuals concerned, and their children, will suffer.
Divorce & family solicitor