The most senior family law judge in England and Wales has called for no-fault divorce and greater rights for unmarried couples.
In a news conference on 29th April 2014, Sir James Munby who is President of the Family Division, called for the idea of fault to be removed from divorce. He proposed that no-fault divorce could be dealt with as a purely administrative matter by the Registrar of births, deaths and marriages. He suggested that the time has come to separate the process of getting a decree absolute of divorce (known to practitioners as the “main suit proceedings”) from the process of obtaining a financial order on divorce.
Current divorce procedure
Currently a couple may only obtain a divorce without apportioning blame if they have been separated for at least two years. If they wish to divorce before then, they must allege adultery or unreasonable behaviour. This means that recently separated couples who are in agreement about wanting a divorce end up having to agree allegations between them simply to get the divorce through. The fact that couples in this situation are obliged to make allegations against one another flies in the face of the approach of Resolution, an organisation of family lawyers, which promotes a non-confrontational, constructive approach to resolving family disputes and is particularly pointless given that the reasons for divorce make no difference to any financial settlement or children arrangement.
Not a new debate
The Family Law Act 1996 made provision for no-fault divorce to be introduced in England and Wales, but opponents said it made breaking up too easy and the plans were scrapped by Tony Blair’s Labour government. Sir Nicholas Wall, president of the high court’s family division, was part of the Whitehall advisory group that backed no-fault divorce in 1996. He is still speaking out in favour of reform some 18 years later – in a speech to Resolution earlier this year.
Rights for unmarried couples
Sir James Munby also called for unmarried couples to have similar protections to those who are married. He said that there has been a “striking decline” in marriage leaving growing numbers of those who have cohabited with little or no rights if they separate. Women in particular find themselves effectively “thrown on the scrap-heap” he said.
Current cohabitation law
The rights of unmarried couples – or lack of them – were discussed in a previous post on this blog Cohabitation and the law – the myth of the common law wife. Essentially, whereas if a marriage ends in divorce, the court has the power to redistribute the matrimonial assets between the spouses, there is no such remedy for unmarried couples when their relationship breaks down, however long their relationship has lasted. The court has no power, for example, to order that one party should pay maintenance to the other or that pensions should be shared. Instead the court is limited to applying the law of property and trusts in relation to any dispute concerning property held by one or both of the separated parties. This can lead to serious injustices.
Need for reform
Again, this is not a new issue. In a Court of Appeal case in 1984, Lord Justice May said of the woman who was entitled to nothing after having cohabited with a man for nearly 20 years, brought up their children, changed her name to his and looked after his home: “I think that she can justifiably say that fate has not been kind to her. In my opinion, however, the remedy for any inequity she has sustained is a matter for Parliament and not for this court”.
Thirty years have now passed and Parliament has done nothing to remedy the inequity. This is despite the Law Commission having strongly recommended reform in its 2007 report “Cohabitation: The Financial Consequences of Relationship Breakdown“.
In September 2011 Jonathan Djanogly confirmed in a written ministerial statement that the coalition government did “not intend to take forward the Law Commission’s recommendations for reform of cohabitation law in this parliamentary term”. His departure from ministerial ranks has not given rise to any change in government policy on this issue. Nor does the government have any current plans to introduce “no-fault divorces”. Both issues continue to rumble along.
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