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.
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’.