Keeping it simple: divorce in our digital age
Things were different then. By ‘then’ I mean in 1969, when the Divorce Reform Act was passed. It is incredible that we still use the same set of ‘facts’ to prove that a marriage has irretrievably broken down. In 1996, the law very nearly changed to allow something like ‘no fault divorce’ and without requiring to be separated for at least 2 years.
The new Lord Chancellor, David Gauke MP, has agreed that he will consider asking Parliament to amend the current law. Once the Government openly acknowledges the need for reform, there is much greater hope that the change might happen.
It is not yet clear which variations on ‘no fault divorce’ will be proposed. A popular version is put forward in ‘Finding Fault‘, a report for the Nuffield Foundation by a highly respected team led by Professor Liz Trinder. Under the proposal, a notification system would be put into place, where one or both of the spouses register that the marriage has broken down irretrievably and then that intention to divorce is confirmed by one or both after a minimum period of at least six months. It would still be an option for the other spouse to defend the marriage and allege that it had not broken down irretrievably, meaning that the divorce will not go ahead.
Since the birth of the Divorce Reform Act, we have learned a great deal more about the impact of broken marriages on the health of both adults and children. Such knowledge is a major factor in the increased level of understanding and sympathy for marriages which break down. It is crucial for policy to be based on evidenced research, such as that done by Tavistock Relationship (the ‘Parents as Partners‘ programme, which clearly demonstrates the importance of minimising parental hostility as a way directly to help children). The law should aim to relieve distress and pain, where it can sensibly do so. Legislating for no fault divorce is a significant step in this direction.
A further reason to rationalise the law, and to simplify it, is the drive towards digitalisation of the divorce process. The technological evolution would save money, delay and stress on people at a time of worrying change. Fewer court buildings, fewer court staff, less work for judges: what’s not to like in times of financial austerity? Now, registrars deal with the technicalities of marriage. Currently, on divorce based on fault, a judge has to make a ruling if one person alleges that the other has behaved ‘unreasonably’.
The President of the Family Division, Sir James Munby, is spearheading the rapid drive of the court system into the digital age. A necessary first step is to delink the process of divorce from the discretionary area of financial division. The former can be an administrative process if all parties agree. As a result, if no fault divorce were a reality, there would be no need for any judicial oversight for the great majority of divorcing couples. As divorce petitions are now online, so long as the correct information is available to individuals the rest of the divorce process can follow administratively. The financial area will continue to need judicial involvement and oversight, if only to protect the State from unwise financial settlements that expose one spouse to potential poverty. Children are all entitled to the same legal protection whether their parents are married or not, so there is no change contemplated in their care.
In years to come, I hope we will look back at the early years of the 21st century and see the process of divorce we currently use as anachronistic, complex, expensive and damaging. We need to K.I.S.S (Keep It Simple, Stupid).
This article was originally published in Family Law and can be accessed here.