Hot on the heels of the recent family law reforms has come speculation about additional future changes. Two areas of particular interest are the introduction of greater rights for co-habitees and the simplification of the divorce process.
April 2014 saw the introduction of a raft of reforms which have been heralded as a revolution in the way family law is conducted in England and Wales. Following this major upheaval, practitioners were perhaps hoping for the dust to settle before more changes were mooted but they appear to be out of luck.
At the end of April Sir James Mumby, President of the Family Division and Head of Family Justice, addressed legal practitioners on the reforms and raised the prospect of even further modernisation.
Avoiding the Scrapheap for Co-habiting Couples
In a wide-ranging speech on the changes to Family Law, Sir James Mumby commented on a number of areas that he considered possibilities for reform in future. One of his eye-catching suggestions related to the issue of how long-term co-habitees were treated in law when they broke up compared to divorcing couples.
He discussed the problem of women who had been living with their partners for many years but have never married ending up “on the scrapheap” when they split up. He questioned whether these couples might be treated in a similar way to married couples after a period of living together so that financial support would have to be provided at the end of the relationship.
This idea is certainly grounded in an understandable rationale with the huge increase in unmarried couples now living together. In practice, it may be very difficult to establish the realities of couples’ living arrangements and to implement such a rule but the devil would be in the detail of any proposals.
Is It Time for No-Fault Divorce in the Registry Office?
No-fault divorce is not a new suggestion but Sir James Mumby went even further in his speech. He questioned whether divorce should not just be available without fault, “Has the time not come to legislate to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground?”, but also that is be available without interference from lawyers, “Indeed, may the time not come when we should at least consider whether the process of divorce still needs to be subject to judicial supervision?”
The upshot of that would mean that divorce would separated from financial proceedings in the way it has been from childcare proceedings and couples could simply head to the registry office to dissolve their marriage.
Although such an approach has the appeal of convenience, it should not be forgotten that marriage is a legal contract and completely detaching it from the responsibilities that go with it may leave little incentive to resolve them. A lack of legal oversight could also create space for other abuses to creep into the divorce process.