Should the Process of Divorce be Removed from the Courts?

President of the High Court Family Division Sir James Munby is calling for a radical overhaul of the law to recognise the changing state of families in England and Wales. The intentions of these changes include providing cohabitees with the same legal rights as married couples and removing a sense of blame from divorce. 

The President has suggested that divorce could be removed from the court system completely, enabling officials to dissolve marriages instead of judges, in much the same way as registration of births and deaths is handled out of court. The proposed changes intend to reflect the changing face of the traditional nuclear family. Rising numbers of single parents, unmarried parents, step-families and same-sex couples have already prompted alterations to the current divorce system to accommodate the varying needs of families in England and Wales, and the President asserts that further adjustments need to be made.

In response to Christian campaigners who claimed that “the protection of commitment [would] be significantly downgraded” if the element of fault were removed from divorce, the President asserted that the proposed changes were simply aimed at introducing “a bit of intellectual honesty” to the current system in light of changes to societal norms. Other adversaries to the scheme highlighted the fact that some parties find positive value in the acknowledgement of ‘blame’ during divorce that helps to validate the process. 

The President urged an audience of judges and lawyers in London to recognise the need for amendment to the current divorce system, including formulating a clear legal status for cohabiting couples. “The family, though fundamental to society, has undergone dramatic changes in recent decades,” he explained, “The fact is that many adults and children, whether through choice or circumstance, live in families more or less removed from what, until comparatively recently, would have been recognised as the typical nuclear family.” Currently, unmarried couples can find themselves with little or no rights if they choose to separate, and the President claims that “reform is desperately needed” to protect women in particular.  He concluded: “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? Has the time not come to uncouple the process of divorce from the process of adjudicating claims for financial relief following divorce?”

Currently, there are several alternatives to court divorce, such as arbitration, collaborative family law and mediation. Unmarried couples can also safeguard their legal position by drawing up a cohabitation agreement which will help to protect their assets in case of separation. For advice on all aspects of family law, speak to one of our expert solicitors at Frances Lindsay & Co, with fixed-fee services available across the Thames Valley.