A system in which divorce & finances are dealt with separately

There is a part of me that cringes when I see that our President has published another of his views from his chambers, setting out his thoughts upon the reform of the family justice system. “What now???” I think, yearning for the time when everything was left alone for at least five minutes, so that you could get used to it before it was all changed again.

Sure enough, the latest View from the President’s Chambers, the seventeenth in a lengthening and illustrious line, suggests yet more substantial reform of our family justice system (I wonder how many weary practitioners are longing for the President’s retirement next year? 😉 ). The big idea this time is that divorce/civil partnership/judicial separation/nullity proceedings are dealt with separately from ‘money’ proceedings.

The President proposes (or, to be more accurate, ‘endorses the idea’) that a separate ‘Financial Remedies Court’ be set up to deal with all ‘family financial cases’, including financial remedies on divorce etc.; claims under Part III of the Matrimonial and Family Proceedings Act 1984; claims under Schedule 1 of the Children Act 1989; claims under the Inheritance (Provision for Family and Dependants) Act 1975 and claims under the Trusts of Land and Appointment of Trustees Act 1996 (better known as ‘TOLATA’). This ‘specialist court’ would have “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”, and will be up and running by the Spring of next year if the President gets his way.

The President gives a number of reasons for this reform, including the following:

1. It makes sense for financial remedy claims to be separated from the divorce proceedings, now that the actual divorce is dealt with separately anyway, in the regional divorce centres. Rather than transferring the divorce proceedings to the local court when a financial remedies claim is made, under the new system the two sets of proceedings would remain separate. There is, of course, the issue that financial remedy orders ‘depend’ upon the divorce, and therefore the court dealing with the financial remedies claim will need to know what stage the divorce has reached. However, I don’t really see any problem with that – it would be a simple matter for the divorce centre to tell the local court whether the divorce has been issued, whether the decree nisi has been pronounced, and whether it has been made absolute. These things could be checked by the local court, as part of the process of issuing the financial remedies application although if, for example, the decree nisi has not been pronounced and the local court is not therefore able to make a financial remedies order, the local court will have to check again with the divorce centre, before fixing any hearing date. Still, much the same sort of thing happens already – it is just the difference between checking on the file and checking on a central computer system.
2. Specialisation. The Financial Remedies Court would be ‘manned’ by judges who specialise in the family financial cases listed above. As anyone who has practised family law will know, family financial cases are quite different from other types of civil claims, and therefore specialisation must surely be a good thing, avoiding the sort of errors that sometimes crop up when family cases are dealt with by judges who have never done any family work in practice.
3. As mentioned above, the Financial Remedies Court will have a single set of rules, forms and procedures. Obviously, this will aid efficiency and, as the President points out, will be of particular benefit to the increasing number of litigants in person who use the courts. This sounds good, but of course the various different types of family financial case are dealt with under different statutes, and it may be difficult, for example, to come up with one set of forms that fits all. Still, that is not a sufficient problem to make the new court a bad idea.

The President is clearly very enthusiastic about this reform. As I have indicated above, I don’t see any great difficulties with the idea, and it may indeed bring benefits. The only fly in the ointment is whether the setting up and running of the Financial Remedies Court is going to entail any additional expense, as if it is then the powers that be are obviously likely to be rather less enthusiastic.

The 17th View from the President’s Chambers, entitled Divorce and money – where are we and where are we going? – can be read here.