The President of the Family Division has called for the process of obtaining a divorce to be completely separate from a couple’s disputes over money. The proposal is aimed at reducing administrative pressure within the family courts by de-linking “the largely administrative and bureaucratic” divorce work from the more complex legal battles about who takes which assets from a marriage.
Generally, contested divorces are rare. The main area of contention between divorcing spouses tends to be agreeing a financial settlement. Most of the judges’ time is taken up with the subsidiary issues of what is known as a financial remedy application rather than the divorce itself.
“Has the time not come to bring about a complete de-linking – separation – of divorce and ‘money’,” Munby asked, “so that they are started and pursued by completely separate processes, albeit, of course, that the timeline for ancillary relief is determined by the progress of the divorce? My view, which I have been propounding for some time, is an unequivocal and emphatic yes!”
The President says that: “The need for continuing reform is clear, not least to create systems and procedures that can be easily navigated by the litigants in person who increasingly dominate the worlds of both divorce and money.” He proposes that specialist ‘Financial Remedies Courts’ be set up to deal with financial remedy claims, and that the first pilot court be rolled out as soon as sensibly possible in late 2017, or very early 2018.
Divorce is now dealt with in eleven regional divorce centres, while financial claims are still being dealt with by local courts. This means that when a financial remedies claim is made the divorce proceedings are transferred to the local court. It does make sense for financial claims to be dealt with separately. However, financial orders cannot usually be made until the decree nisi has been pronounced, and do not usually take effect until the divorce is finalised, and so, as the President pointed out, the local court will need to know what stage the divorce has reached.
Sir James Munby’s calls will be met with little resistance amongst family lawyers. It remains to be seen what the next government will do to alter “the lamentable history of procrastination” over divorce law reform.
Laura Dand (Associate)