A little more on the reform of divorce

Divorce|August 19th 2014

I wrote here back in May about the President’s comments regarding divorce law reform contained in the press conference he gave on the 29th of April (and also in the speech he gave on the same day to mark and celebrate the family justice reforms). The President has now clarified what he had in mind, in his 13th View from the President’s Chambers, entitled: The process of reform: An update.

The President says that what he had in mind were four quite separate issues, although only three actually relate to divorce: uncoupling the process of divorce from the process of adjudicating claims for financial relief following divorce, removing all concepts of fault as a basis for divorce and making divorce a purely administrative process, without any judicial supervision.

As to the first issue, the President confirmed that it “is simply a proposal that there should be two separate sets of proceedings, one for divorce and the other for financial remedies following divorce, each with its own separate case number and court file”. What is the benefit of this? Well, apparently the handling of divorce petitions is to be concentrated in a limited number of locations, where petitions are to be issued, and ‘special procedure’ (i.e. undefended) divorces are to be dealt with (ultimately, says the President, there may just be one single national centre). This will mean that the process can be streamlined, “making more efficient use of resources and reducing administrative costs”. The issue is apparently being considered by the Financial Remedies Working Group, which published its first report last week.

Will separating divorce and financial remedies lead to significant savings? I’ll take the President’s word on that, although setting up a ‘national divorce centre’ would surely involve some cost. Further, as I’ve pointed out before, there will always be a link between the divorce and financial remedies, as the finalisation of the divorce can have financial implications, especially regarding pension rights. It will therefore still be necessary in many cases to hold off finalising the divorce until financial matters have been resolved – that being the case, it seems better to me to have everything handled ‘under the same roof’.

Frustratingly, considering the amount of reform going on at present, the most important of the three issues, i.e. introducing no-fault divorce, is, as the President points out, something that requires a change to the substantive law and is therefore a matter for Parliament. Unfortunately, there is no sign that the issue will appear on the Parliamentary agenda in the foreseeable future. Those seeking a divorce will still, therefore, be stuck with having to point the blame at their spouses, unless they have been separated for at least two years – a complete anachronism in the twenty-first century, and out of kilter with the conciliatory aims of a modern family justice system.

The same thing goes for the third issue: making divorce an administrative process. The President confirms that this, too, is a matter for Parliament. He does, however, give an example of the sort of process he had in mind, which occurred in a case over which he presided, Solovyev v Solovyeva. In that case the parties had obtained a divorce under Russian law at the Russian Consulate in London, following a purely administrative process. However, such a system here may never be more than a twinkle in the President’s eye, as the government does not seem to have any plans to bring in such a change.

So, we do have an update upon the process of reform but, at least as far as divorce goes, the progress is minimal.

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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