John Bolch asks: should divorce be an administrative process?

Divorce|May 1st 2014

As I’m sure I’ve mentioned here previously, I have long been a supporter of full no-fault divorce. I really can’t see anything good about having to show that the breakdown of the marriage was all the fault of the other party, unless you have been separated for two years and the other party consents to the divorce. I think it is quite rare that the breakdown of a marriage is all the fault of one party, so the system is quite artificial. More importantly, alleging fault is a potentially destructive process, likely to unnecessarily antagonise the other party. This can impede the chances of setting other matters, particularly arrangements for any children.

Now, the President of the Family Division Sir James Munby has suggested in a press conference that he gave on Tuesday that consideration be given to making divorce an administrative process, at least where it is undefended and there are no children. As Sir James admits, this is not a new idea. Indeed, it was recommended in the Family Justice Review. There, however, the proposal was that the divorce should be dealt with administratively by the courts, unless the divorce is disputed.

Sir James is suggesting that the administrative process be dealt with not by the courts but by a ‘registrar of births, deaths, marriages and divorces’. Exactly how this would work in practice is unclear to me, as presumably if we are still to have defended divorces they would still have to be dealt with by the courts. Perhaps where the couple agree to the divorce and there are no children they apply to the registrar for a no-fault divorce, but in other cases one of them applies to the court and has to prove fault if the other party does not consent to the divorce and the parties have not yet been separated for five years.

Such a ‘hybrid’ system which uses two different processes and sets of rules seems a little strange to me. Personally, I would prefer to go the ‘whole hog’ and dispense with fault entirely, as I indicated above. We would then be left with a process that could be dealt with entirely administratively. Whether it would be dealt with by the courts, the registrar or someone else does not seem to matter much, although if contested finances and children arrangements are still to be dealt with by the courts then it would seem sensible that the divorce itself was also dealt with by the court, especially as there can be financial consequences when a divorce is finalised.

The President’s comments have already given rise to considerable discussion, including Marilyn Stowe herself giving her views to the BBC. One of the biggest causes of concern is that any such change in the system is likely to undermine the institution of marriage. I do not accept this. The fact of the matter, as the President pointed out, is that undefended divorce is already little more than an administrative process.

As for defended divorce, that is an extreme rarity, and in any event is futile – if a marriage has broken down, the court refusing a divorce is hardly likely to repair it. Making it possible to defend a divorce only prolongs an unhappy marriage. It does nothing to protect the institution, and I would do away with it.

I agree with Marilyn that there should be no-fault divorce, based solely upon a shorter period of separation than the current two years. Perhaps six months would be appropriate. The process would involve no need to prove anything other than the period of separation and could easily be dealt with administratively, thus freeing the judges up to deal with more important issues.

Photo by Stacey under a Creative Commons licence

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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