On 29 April the most senior family law judge in the country, Sir James Munby, gave a press conference setting out his views on a range of family law issues. I will focus on the two main headlines of ‘no fault’ divorce (or to put it another way divorce without blame) and reforming rights of cohabitants. Both of these potential areas of reform have been promoted and debated extensively over the years, but some of what Sir James has said in this press release is new and his support for reform is extremely welcome.
No fault divorce
There are two aspects to what Sir James says here. The first is that the divorce process itself (but not the consequences in terms of finances and children arrangements) might be better dealt with by an administrator instead of being judge-lead. This happens in other countries where there are no children and the divorce is by consent.
The second, and much more fundamental, issue though is about the grounds for divorce.
At the moment, in order to get a divorce you have to show that the marriage has broken down irretrievably. So far so good, but the problem is that it’s not enough to prove that you’ve grown apart or both agree that it’s over. You have to demonstrate the breakdown by proving one or more of five ‘facts’, or effectively sub-grounds. Three of these involve a wait of at least two years after separation. The other two are adultery and unreasonable behaviour, which enable divorce proceedings to be started immediately, as long as the couple has been married for at least a year.
Because the court’s powers to deal with all the financial consequences of the divorce (even just by approving a settlement reached through mediation, collaborative practice, arbitration or negotiation) are dependent upon there being a divorce decree, and because most people either do not want to or cannot afford to wait for at least two years after separation, it is not surprising that the majority of divorces in this country are based upon one of these two ‘fault’ grounds, even if the couple themselves would much prefer to avoid apportioning blame.
Except in the rarest case, the reason for the divorce has no impact on what happens in relation to money or children. What couples need is to sort out the consequences of their divorce as quickly, cost-effectively and hopefully amicably as possible. Kicking the process off by one side having to blame the other is completely the wrong way to go about things.
I have heard some commentators say that where a marriage has broken down because of the behaviour of one of the spouses, it is right that the other should be able to get that acknowledged through the divorce process.
First, the reasons for the breakdown of a relationship will often be shades of grey rather than black and white. However, even if it is possible to say that all of the blame lies on one side, how does that help sort out the arrangements for the future? It doesn’t.
On the contrary, it can get everything off on the wrong foot and get in the way of dealing with the practical consequences that need to be resolved so that families can get on with their lives.
A civilised society deserves a civilised divorce process.
The current system is, as Sir James says, ‘intellectually dishonest’. The family lawyers and judges involved know that the process itself is a means to the end of resolving the practical financial and other consequences, but however hard you try to explain to the person on the wrong end of an unreasonable behaviour petition that it doesn’t make any difference, it still feels like a kick in the teeth. It’s time we ended the blame game. The backing of our country’s top family judge will hopefully lead to the change that the leading campaigning family law organisation, Resolution, and the vast majority of family law professionals up and down the country have for years been crying out for
Sir James highlighted the fact that many women are, in his words, condemned to injustice under the current law that applies when a cohabitation, as opposed to a marriage, breaks down. Many years ago the Law Commission recommended change. Change has been introduced in many other countries, including our near neighbour Scotland, but successive governments here have ducked the issue.
The bottom line is that a woman, and it is most often women who are prejudiced here, can have been living with her partner for many years. She can have sacrificed her own career to look after a family but end up with absolutely nothing and at an age where she is simply not able to become financially independent.
Strengthening the rights of women in this position does not in any way undermine the institution of marriage. It’s not about giving cohabitants the same rights as married couples. It’s about making sure people are not left completely in the lurch, or thrown on the scrapheap as Sir James put it.
As with reform of the divorce laws, it is high time that we put this area of law right.
Nigel is vice chair of the family lawyers group Resolution and a partner at the law firm Mills & Reeve