No-fault divorce, defective petitions, a new President and more
By:1 commentApril 27, 2018
The week in family law
At its annual conference last weekend Resolution, the association of family lawyers, repeated its call for the introduction of no-fault divorce. The call was echoed by the President of the Supreme Court Lady Hale. In a speech to the conference she said that she believed that no-fault divorce is “aimed at strengthening family responsibility”. She also proposed that an online ‘one stop shop’ for divorce be created, where all issues relating to divorce, including finances, arrangements for children and child support could be dealt with, rather than have those matters dealt with separately, as is the case today. As I said here myself, I agree entirely – that these matters are dealt with separately is completely absurd. (For more on the subject of no-fault divorce, see the last story, below.)
Sir James Munby, the (current) President of the Family Division (see below), has issued interim guidance for defective divorce petitions and divorce decrees. The guidance follows a number of recent cases that were brought to his attention in which decrees nisi and absolute had been wrongly granted, either because the divorce petition had been issued within one year of the marriage, or because the requisite period of separation had not elapsed. The interim guidance sets out in detail (pending the outcome of the Queen’s Proctor’s further investigations and the issue of further Guidance) what practice should be followed in any case in which it is discovered that a decree has been wrongly granted. Sir James said: “HM Courts and Tribunals Service and judges will wish to be alert to the potentially devastating impact on litigants of being informed that there is a ‘problem’ with their decree, especially if (and this is unlikely to be known to the court when the first communication is made) a litigant who believes that they have been validly divorced has remarried or is due very shortly to remarry. Communications should accordingly be expressed in appropriately sympathetic and apologetic language.”
The Right Honourable Sir Andrew McFarlane will be the next President of the Family Division, it has been announced. The appointment will take place on 28 July 2018, following the retirement of Sir James Munby on 27 July. Sir Andrew’s background is that he was called to the Bar in 1977 and took Silk (Queen’s Counsel) in 1998. He was appointed a Recorder in 1995, a Deputy High Court Judge in 2000 and a High Court Judge in the Family Division in 2005. He was Family Division Liaison Judge for the Midland circuit until his appointment as a Lord Justice of Appeal in 2011, where he is the Supervising Lord Justice for Family Cases. It will be interesting to see whether Sir Andrew will be as ‘hands on’ as his highly respected predecessor. Whatever, I wish him every success (just not so much new guidance please!).
A senior civil servant responsible for several family justice reforms has predicted that enabling people to apply for a divorce online could eliminate up to 13,000 hours of time spent by court staff checking divorce petitions. The prediction came from Adam Lennon, head of family modernisation and improvement at HM Courts & Tribunals Service, who told a Westminster Legal Policy Forum that when he worked in the courts service issuing divorce petitions he returned an estimated four out of every 10 petitions to the applicant because of an error. In many cases, he said, “applicants and their legal representatives were not able to accurately copy word-for-word the place of marriage from the marriage certificate”. However, he said that when a digital divorce service was introduced that fell to 7% of applications being rejected, and the figure now stands at just 0.4%. All sounds very promising, although I do recall when I was practising solicitors complaining that courts would often send the entire paperwork back for the most trivial of reasons, when a simple phone call could have sorted out the error.
And finally, confirming what we already knew, new research by the Nuffield Foundation exploring why defended divorce occurs and examining how cases are dealt with by the courts has found that the great majority of defences arise from quarrels about who is ‘at fault’. In practice, however, the researchers say that this is not something that can be determined by the courts, and most cases are settled, rather than decided by a judge. In addition, the research found that the financial and emotional costs, and discouragement from the family justice system, mean that defending a divorce is not an accessible option for most people. The report concludes that the law is generating disputes and then failing to remedy them, and calls for reform of the divorce law to remove the concept of fault entirely. Quite. You can read the full report here.
Have a good weekend.
April 27, 2018
Categories: A Week in Family Law