No Fault Divorce?
Sir James Munby, President of the Family Division of the High Court, has suggested that perhaps the law should be changed to permit divorces to proceed without blame being assigned to either party. He has recommended that the irretrievable breakdown of the marriage be the sole basis for the divorce.
Couples agreeing to a divorce should be able to arrange this by attending at the Registrar’s Office, rather than the matter being considered by the Court. This would allow for less painful and more expedient separations. Comparisons have been made with other countries in cases where couples wish to divorce and there are no children and the matter is dealt with on an administrative basis. It is thought that the Registrar’s Office could fulfil such a function in this country.
It has been acknowledged that the Court will still need to be involved in the divorce process in the event of a dispute or if the case involves children.
Sir James Munby proposed that maybe the time has come to separate the process of divorce from determining financial relief claims following the divorce.
Sir James has also urged government ministers to afford unmarried couples living together the same rights as married couples. There is concern that some people are effectively being “thrown on the scrapheap” without any financial help at the end of a relationship if they have never married, particularly if the property in which the couple have been living is in the sole name of one of the parties.
Under the current law, if a marriage is terminated by divorce, the matrimonial assets can be redistributed by the Court in the absence of any agreement between the couple. Unmarried couples do not have access to the Court for similar relief at the end of a relationship, regardless of the length of it.
Sir James believes the present system is unjust, in that different laws apply to couples at the time of separation dependent upon whether or not they are married. He calls for reforms in this area of law and states they are desperately needed. The Law Commission has also recommended reforms. To date, governments have failed to act on these recommendations.
In limited circumstances, following the breakdown of a relationship, co-habitees may be able to apply to the Court for relief under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA). However, legal advice and assistance would usually be required to successfully pursue this course of action. The rules for such applications are far from straight forward to lay people (non-lawyers).
Since 22nd April 2014, at the time of the launch of the Single Family Court, all separating couples have been required to attempt to resolve any dispute with the assistance of mediation, in an attempt to avoid costly and sometimes lengthy Court Proceedings. There are a limited number of cases which, for various reasons, e.g. domestic violence, would not be assessed as suitable for mediation. Even prior to 22nd April 2014 couples were encouraged to attend mediation before commencing Court Proceedings, although the rules in relation to this did not appear to be applied uniformly throughout England and Wales.
Particularly since the changes in eligibility for Legal Aid in April 2013, there has been a significant increase in the number of litigants in person. This has put a great deal more pressure on the Court system.
It has become necessary for Judges to become more active in directing Court Proceedings, especially in cases where neither party is represented by a lawyer.
Sir James has suggested that the Court agenda should be set by the Judge, but he did not foresee a move to continental legal procedures, where the process is entirely dominated by an inquisitorial Judge.
Some legal commentators have criticised the recommendations made by Sir James and advocate that divorce should remain under judicial supervision. They have suggested that to take an alternative course of action could result in the process being open to abuse.
At present, the government has no plans for “no fault” divorces to be introduced or for the laws regarding cohabitation to be amended.
If you require any advice regarding divorce or separation, please do not hesitate to contact the Family Department at Emery Johnson Astills for expert legal advice.