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Published: 24th May 2017
The most senior family judge in England and Wales, Sir James Munby, has suggested that the issues that couples have regarding the splitting of their money should be a completely separate process to their divorce proceedings. He also called for new online divorce proceedings, whilst referring to the government’s 'lamentable history of procrastination' where the reforming of laws surrounding divorce is concerned.
Sir James Munby believes that 'the largely administrative and bureaucratic' divorce cases and the more complex battles for marital assets should no be longer linked, and this desire is aimed towards reducing the administrative pressure within the family courts.
Speaking about the state of the family courts in his latest published commentary, he stated that subsidiary issues of ancillary relief take up the majority of judges’ time, rather than the actual divorce. For example, an extraordinary legal battle from a recent case within the UK saw the ex-wife of an oil and gas trader receive £453m, following one of the largest divorce settlements ever within the UK courts.
Are changes to divorce laws needed?
Sir James asked, '[h]as the time not come to bring about a complete de-linking – separation – of divorce and "money", 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!'
Divorce laws within the UK are widely considered to be outdated by many within the industry, and top lawyers have been calling for the laws to be changed by the government.
An ever present issue is the introduction of no-fault divorces, with many bills having been presented to parliament by several private members. However, no real progress has been made as of yet.
Sir James, the President of the high court’s family division, said 'reform of the substantive divorce law - for example by the introduction of "no‐fault" divorce - requires primary legislation. Reform of divorce procedure, by contrast, including the introduction of on-line divorce, does not require primary legislation, only changes to the FPR, to Practice Directions and to forms (or their electronic equivalents).’
The future of divorce laws
Referring to contradictions within recent ministerial announcements, Sir James said that the government’s 'lamentable history of procrastination suggests it would be unwise to assume speedy progress. Obviously, it would be better if divorce law reform is now seriously on the agenda, to delay full implementation of online divorce until we know what shape the reformed law might take. But we cannot allow the pressing imperatives of procedural and digital reform to be delayed in anticipation of such an uncertain future.' He also commented on the introduction of online divorces, saying that the ability for couples to dissolve their marriage or civil partnership remotely 'must be more than a simple electronic version of the existing processes.'
Instead, Sir James believes that what is required is a system where money claims are dealt with 'in accordance with 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.' Following this, he also believes that the system should determine 'formally, legally and procedurally' a distinct separation between divorce and money.
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