When married couples and civil partners separate there are two (or three) parts to the legal arrangements : getting divorced (called dissolution if you are in a civil partnership), sorting out the money, and sorting out arrangements for any children.
The way the law is structured a court can’t deal with the money bit unless and until the divorce is underway. The court’s power to grant financial relief to a partner who is left high and dry or with an unfair share of the matrimonial pot is dependent on their being a divorce – to be technical, it is ancillary to the main divorce suit (even though some might say its more important than the divorce itself). Hence the term “ancillary relief”, which is what “financial remedy” claims were called until just a few years ago.
Divorce itself is pretty straightforward and largely administrative – for almost all couples (the recent case of Owens v Owens being a notable but very rare exception). It’s sorting out the money that gets tricky sometimes.
There have been calls for some time for the divorce bit to be separated from the money bit. Last week the President of the Family Division, Sir James Munby issued a further call for such separation – something he has been known to favour for some time. You can read what he said here, in his “17th View from the President’s Chambers”.
There is a a pilot underway at present which enables divorce cases to be dealt with online. We say online, but our understanding is the forms can be completed online but still need to be printed out, signed and submitted in person or by snail mail, which is a somewhat quaintly humorous notion of modernity. If this goes well, fully online divorces could be rolled out in the not too distant future.
So what’s the problem? Well, at the moment there are 11 regional centres which bulk deal with divorce petitions. But when someone issues a claim for financial relief (apart from a consent order) the whole shabang has to be transferred to the court nearest to the parties, which is a bit of a pain / confusing for everyone (those unfamiliar with how courts work might ask why – the answer is that the physical transfer of papers files (yes really, paper files) takes time and so transfer builds in delay and the risk a file will be lost in transit).
As of May there is a pilot which has just started in one court centre to change this system of transferring everything to where the money is going to be sorted out – the divorce file will be left where it is, whilst the money stuff is sorted out locally. It’s important that this is got right – a judge making a money order needs to be confident of whether or not the decree nisi (or conditional order) has been made at the divorce centre), or whether a decree absolute (final order) has been made – because these affect (respectively) whether or not a money order can be validly made at all, and when it takes effect. So it’s important that the information is efficiently and reliably shared between locations.
From the point of view of court users, this probably seems mind bogglingly banal – many may mutter that it should not be beyond the wit of man to sort out such administrative matters. Indeed. Before regional divorce centres all the paperwork was kept locally in one place anyway, so such cumbersome processes were not necessary – but the regional divorce centres were created in order to increase efficiency in other ways (and no doubt to save costs). Most court users probably care little, as long as the process works reasonably swiftly and with minimum hassle and confusion. This is back end stuff, much of which is unseen by the court user unless something goes wrong. It is sensible that such things are piloted, because if not done properly they could go rather wrong and cause problems that court users really would notice (in the worst case like having an order for financial relief that turns out not to be valid).
Essentially, what Munby’s document says is that there is a need for Parliament to reform the law through a new Act, but in the meantime the judges are getting on with doing as much to separate the two processes as the current law will allow. It mentions also the much more politically sensitive issue of no fault divorce, which the case of Owens v Owens thrust firmly back into the public eye. As The President notes however, although Owens has led to a nod in Parliament to the need to think about law reform in the broader area of family justice “The lamentable history of procrastination suggests it would be unwise to assume speedy progress” on no fault divorce. The President here is referring to the fact that it was as long ago as 1996 that the Parliament of the day passed the Family Law Act 1996, containing provisions for no fault divorce. They were never brought into force because they were too politically toxic, and were ultimately repealed. And so, in 2017 it is still necessary to prove some fault on the part of your ex in order to get a divorce, even if you both agree the relationship is dead. Usually that is achieved through a somewhat intellectually dishonest and pointless ritual of alleging fault that the other person lets ride, but many people find it an odd, unhelpful and upsetting dance to have to perform at a difficult time.
So, says the President, the judiciary will be cracking on with online divorce, procedure and rule amendments – and they won’t be hanging around waiting to find out if anything is about to happen. They aren’t holding their breath for help from Government / Parliament.
The President also touches upon the creation of specialist financial courts, and on some rule changes to enable property disputes between former cohabiting (unmarried) couples to be dealt with in the Family Court, rather than the County Court where they are at present.
Feature pic courtesy of Aaron Shumaker on Flickr (Creative commons licence) – thanks!