Click Divorce Blog

 

Should we be taking “No Fault” Divorces out of the Courts?

17 July 2014

 

When Sir James Munby, the president of the High Court Family Division and most senior family judge in England and Wales recently put forward the argument that so-called “no-fault divorce” shouldn’t be a matter for the courts, many in the legal profession agreed with him. Also known as divorce by consent, the situation whereby both husband and wife are seeking separation but don’t necessarily meet the specified grounds for divorce, is becoming more and more common.

At present, a judge is only allowed to grant a divorce if the marriage has “irretrievably broken down” due to one or more of the following grounds:

? Adultery
? Unreasonable behaviour
? Desertion after two years
? Two years' separation with the consent of both parties
? Five years' separation without mutual consent

This legal restriction in the British legal system often leads to the bizarre situation in which many divorcing couples end up essentially end up inventing the grounds for their divorce (such as claiming that an affair has taken place when none has), just so they can swiftly proceed with their separation and go their separate ways. In calling for a change in the law, Sir James said “has the time not come to legislate to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground?”

An Administrative Process

Munby referrs to the current process of consensual divorce as “essentially a bureaucratic, administrative process, albeit one conducted by a district judge” and argues that the “reality is that we have, and have had for quite some time in this country, divorce by consent, in the sense that both parties wish there to be a divorce.”

No doubt, taking divorces of this nature out of the courts would also reduce costs, both for the husband and wife, and an already beleaguered court system itself. Sir James suggested that law makers look to other countries “where the system is that a divorce which is by consent and where there are no children is treated as an administrative matter dealt with by what, using our terminology, one might describe as the registrar of births, deaths, marriages and divorces. It seems to work.”

Using Mediation as an Alternative to Court

The government introduced Mandatory Mediation Information and Assessment Meetings (MIAMs) back in 2011 for all divorcing couples. These are designed to present the option of mediation as an alternative to going to court to fight out the details of a divorce. Figures have shown that the average cost of using mediation is around £500, compared with £4,000 for issues that are settled through the courts. The amount of time it takes to conclude mediated cases is 110 days, a significant reduction from the 435 days for court-fought divorces.

But even if couples choose to go down the simpler and quicker route of mediation, a court still has to rubber-stamp the separation, which inevitably costs time and money and unless Sir James’s proposals are taken up by the government, this situation isn’t going to change anytime soon.


Author Bio: Muna Saleem is an associate solicitor with Family Law Firm, Crisp & Co and an accredited member of the Law Society’s Family Law Panel. She practices in all areas of private family law including divorce and financial remedy applications, financial settlements, cohabitee disputes, as well as children matters such as Child Arrangement Orders and international relocation applications. You can connect with her or any of Crisp & Co’s other solicitors on Twitter.

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