The process of obtaining a divorce should be completely separated from a couple’s disputes over money, according to the most senior family judge in England and Wales. Referring to the government’s “lamentable history of procrastination” in reforming divorce laws, Sir James Munby called for the streamlining of new online divorce procedures.
The proposal is aimed at reducing administrative pressure within the family courts by unlinking “the largely administrative and bureaucratic” divorce work from the more complex legal battles about who takes which assets from a marriage.
Most of the judges’ time is taken up with the subsidiary issues of what is known as ancillary relief rather than the divorce itself, Munby said in his latest published commentary on the state of the family courts. Last week, for example, the former wife of an oil and gas trader was awarded £453m in one of the largest divorce settlements ever agreed by a UK court following a lengthy legal battle.
“Has the time not come to bring about a complete de-linking – separation – of divorce and ‘money’,” Munby asked, “so that they are started and pursued by completely separate processes, albeit, of course, that the timeline for ancillary relief is determined by the progress of the divorce? My view, which I have been propounding for some time, is an unequivocal and emphatic yes!”
Many lawyers working in the family courts have been pressing the government for changes to divorce laws they consider outdated. There is growing pressure for the introduction of no-fault divorces: several private members’ bills have been presented to parliament, though none has made much progress.
“Reform of the substantive divorce law – for example by the introduction of ‘no‐fault’ divorce – requires primary legislation,” observed Munby, who is president of the high court’s family division and has been forthright in his criticism of government shortcomings.
Highlighting contradictions in recent ministerial announcements, Munby added: “The lamentable history of procrastination suggests it would be unwise to assume speedy progress. Obviously, it would be better if divorce law reform is now seriously on the agenda, to delay full implementation of online divorce until we know what shape the reformed law might take.
“But we cannot allow the pressing imperatives of procedural and digital reform to be delayed in anticipation of such an uncertain future. Absent clear decisions from government in the reasonably near future, we have to proceed with reform on the basis of the existing statutory regime.”
The development of online divorce, whereby couples will be able to sort out the dissolution of their marriage or civil partnership remotely, “must be more than a simple electronic version of the existing processes”, Munby said.
What is required, he said, was a system under which there is “formally, legally and procedurally” a complete separation of divorce and money – with money claims dealt with “in accordance with a single set of rules providing, so far as possible, for a common form of application, a common set of forms, a common process and common procedure.”