Sir James Munby, England and Wales’ most senior family judge, has called for no-fault divorce to be introduced, and made available through a much faster, simpler process. He said that such divorces could be carried out without the need for a judge, and handled as a purely administrative matter by registrars.
The government has stated, however, that it does not have any plans to implement a change along these lines, and some have claimed that such a system could be easily abused.
Divorce by consent has, Sir James contends, essentially existed for thirty years. However, it is part of a requirement that couples prove their marriage has broken down irretrievably. Of the five criteria that can be used to achieve this, only one lacks an element of blame. This allows a divorce to be granted only when the couple have been separated with mutual consent for a period of two years. While it is therefore effectively possible to obtain a divorce because both partners are in agreement and without blame, it first requires two years of waiting. It is also necessary for both partners to agree that this is the reason for divorce.
The other forms of evidence that can be used to show a marriage has broken down and obtain a divorce are unreasonable behaviour, adultery, desertion after a period of two years, or five years separation without mutual consent. All of these hold one partner at fault.
By contrast, many other jurisdictions around the world offer no-fault divorce by mutual consent without the need to wait for a period of two years. Such no-fault divorces were originally going to be introduced in England and Wales by the Family Law Act 1996, but this part of the Act was scrapped by the Labour government following opposition to the concept.
Sir James is not the first to call for a more workable form of no-fault divorce in England and Wales, and this part of his suggestions will doubtless attract considerable support. However, the idea of treating such divorces as an administrative matter with no involvement from a judge will likely be more controversial.
Sir James contends that such divorces are already handled in this way in other countries, and that such a system “seems to work.” However, some legal professionals remain opposed to the idea. For example, Marilyn Stowe, a senior partner at Stowe Family Law, contends that divorce “should remain a legal process” because it is in essence “the dissolution of a legally binding contract of marriage.” Stowe also suggested that the system could be abused if “removed from judicial supervision.”