Take divorce out of judges’ hands – Munby

Topics: Family and children

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  • Sir James Munby

Divorce could be taken out of the hands of judges and dealt with by a ‘registrar of births, deaths, marriages and divorces’, the head of the family court has suggested.

Sir James Munby told journalists today that thought should be given to ‘uncoupling’ the process of divorce from adjudicating on financial relief, in the same way that determining child disputes has been separated from divorce.

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Where divorce is by consent and does not involve children, Munby said, other jurisdictions deal with it as an administrative matter with a registrar of births, marriages, deaths and divorce.

The same thing, he suggested, should be considered here.

Munby rejected the notion that changing the process would make divorce easier or undermine the institution of marriage. ‘The reality is that we have had divorce by consent for 30 years.’

In what he described as an ‘essentially bureaucratic and administrative’ system, judges go through a ‘ritual’ of considering whether the grounds for divorce are made out: defended divorces happen so infrequently that they are ‘invisible’.

Changing the process, he suggested, will bring ‘intellectual honesty’ to the process and can be seen as the ‘culmination of the divorce law reform that started as long ago as 1906’.

Munby said he is keen to tackle the ‘injustice’ faced by cohabiting couples when they separate. He said the unfairness of their having no legal right to the financial relief that married partners would be entitled to has been recognised by judges since 1973. 

Despite that and a call for change by the Law Commission, he said, ‘thus far nothing has happened’.

The essential problem, he said, is that women whose wealthy partners have refused to marry them may have been in lengthy relationships, and made the same career and financial sacrifices to look after children, that married women have made.

Yet, he said, as the law stands they are entitled to nothing when the relationship ends.

In response to the increase in the number of litigants in person, Munby suggested the judicial process will have to be more ‘inquisitorial’, though he was at pains to insist it should not go down the route of the continental system.

He is also keen to encourage greater take-up of mediation, he said. There is, he suggested, ‘almost a crisis in mediation’ due to the poor take-up, which he said ‘should have been foreseen by the government’.

The public, he said, has ‘not been sold’ on mediation, but ‘steps are now being taken to remedy things’ and hoped ‘once the message gets out that mediation is available and works,’ take-up will increase.

The reforms of 2009 that gave the media access to the family courts, said Munby, have proven ‘futile’.

Without access to court documents, he said, it has been impossible for the media to understand what is going on in cases and report them. Munby said he would bring forward changes to give the press access to court documents ‘in the near future’.

Readers' comments (20)

  • Not to mention that children born out of wedlocck are treat differntly to a child born within wedlock, according to the defence of changing my grandsons name for family court proceedings to a child in a name that has never existed, then back to his birth certified name and splitting a court case joined to-gether by the High Court of Appeal, they are allowed to do that, because the parents were not married

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  • of course family disputes should be dealt with outside the court system but how can we justify perpetuating the archaic treatment of women who "are entitled to nothing when the relationship ends". we will not develop the mindset necessary for true equality of the sexes whilst we openly judge women and men by fundamentally different rules.

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  • Ask any Family Practitioner and they will tell you that mediation on its own does not work. As one of my clients put it, 'it just echos the dynamic of the original relationship'. Mediation does not in my experience benefit down-trodden women who probably form the vast majority of people trying to access what was once a LEGAL system with laws passed and evolved to prevent or minimise abuse. Let's be clear; the current buzz for mediation is all about court budgets and nothing to do with what might work to help couples and their children at times of enormous emotional stress. It works when people (men mostly and I am a man) realize that if they don't mediate sensibly they may come off very badly, and that only happens when the court process is actually hanging over them.

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  • Excellent suggestion

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  • He is right about making divorce an administrative process. You sign a form saying you want a divorce; a few weeks later you sign another saying you have not changed your mind; and that's it.

    Which is what happens now, except there are three forms; a petition, a special-procedure affidavit, and an application of a decree absolute.

    He is wrong about cohabiting couples, and so are most of the bien-pensants, who have lost sight of the idea of personal autonomy and personal responsibility. It is quite wrong to pretend that people who have taken on the commitment which marriage represents "have really" or "sort of have" or "have not done the paperwork".

    "Women whose wealthy partners have refused to marry them" have chosen to remain in the relationship and should be eld to their choice.

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  • I think certain types of very acrimonious divorces can not be successfully completed without solicitors guidance, in my opinion.

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  • Perhaps Sir James will also turn his attention to the wrong suffered by people who choose not to insure their houses and it is then suffer destroyed in a fire or some other catastrophic event. After all. just like people who do insure, they live in the house, often for many years, perhaps spending time and money doing it up. Why should they suffer just because they decided that insurance wasn't for them?

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  • Yes, let's have - I divorce thee, I divorce thee, I divorce thee. It can be as simple as that.

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  • Interesting views which are clearly worthy of consideration. There are a few judicial functions that could be seen as "administrative" in nature. Does that mean that they should be removed from the judiciary? On a separate point, most people would agree that there is unfairness in the treatment of cohabiting couples.

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  • You do not get a Judges consent when you are born, you do not get a Judges consent when you marry and you do not get a Judges consent when you die. In simple matrimonial matters why should divorce be any different?

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