President's views on more reform

President's views on more reform

Family analysis: Sir James Munby, President of the Family Division, told a press conference at the Royal Courts of Justice that the time has come to consider whether uncontested divorces where there are no children should be taken out of the courts. The most senior family judge in England and Wales also suggested it was time to legislate for no-fault divorces and reform the rights of cohabitants.

If the process of divorce is no longer subject to judicial supervision and becomes a purely administrative process, will that change the status of divorce as a legal contract?

Not at all. It would have no effect on either the status of marriage or on the legal status or consequences of divorce.

There are countries where a divorce which is by consent and where there are no children is treated as an administrative matter dealt with by what one might describe in our terminology as the registrar of births, marriages and deaths--and divorces. It seems to work.

It would make divorce no easier than it is at present. The reality is that we have had for quite some time in this country divorce by consent in the sense that if both parties wish there to be a divorce they're able to establish the grounds for divorce very easily. The process is an essentially bureaucratic administrative process, albeit one conducted by a district judge. Part of my thinking is that we should uncouple the process of divorce from the process of financial remedies in the same way recent changes have finally uncoupled the process of divorce from the process of dealing with child disputes.

The process of resolving financial disputes may ultimately require a court order as only the court can sanction a binding arrangement. That does not mean that the process has to involve full-blown ancillary relief proceedings before a judge. If the parties can resolve their differences, whether by mediation or by arbitration or in some other way, unless there is some good reason to believe that the agreement they have come up with is badly skewed, unfair or the result of undue pressure by one party, it is the function of court to uphold the autonomous decision-making of the parties rather than to condemn them to a controversial litigious process.

You also suggest it is time to legislate to remove all concepts of fault as the basis for divorce, leaving irretrievable breakdown as the sole ground. Critics argue this could undermine notions of responsibility in marriage. What difference will it make?

In practical terms, very little. The reality is we have had divorce by consent in this country for the best part of 30 years. Under the law at present, you can only establish irretrievable breakdown of the marriage if you can establish adultery, unreasonable behaviour, separation for two years with the consent of the respondent or five years separation without the consent of the respondent. It is not very difficult, bearing in mind the current concept of unreasonable behaviour, to come up with some petition containing what, in a more robust era, would have been called anaemic allegations of misconduct.

Contested divorces are almost invisible so all one is doing is bringing a bit of intellectual honesty to the situation. I do not see how this in any way undermines marriage or the sanctity of marriage.

You say reform of the rights of cohabitants is 'desperately needed' and is 'inevitable' because it is 'inconceivable' that society won't right the injustice this causes women. The government has said it has no intention to legislate. What would you like to see happen?

The essential problem is where, for some reason or another--which may be no more than the refusal of a wealthy man to marry--a relationship which has lasted for many, many, many years breaks down. There may be children from the relationship and the woman may have made precisely the same career sacrifices, precisely the same financial sacrifices as many women do as a consequence of marriage. The children, if they're below the age of 18, are entitled to certain forms of financial relief but the woman is entitled to nothing at all and she may be, to use the vernacular, 'thrown on the scrapheap' at a time when she has lost her earning potential because of her age and because of the time she has been out of employment, in circumstances where, had the parties been married, she would have had a very significant claim to very significant financial relief.

One of the issues the Law Commission has grappled with is whether there should be a minimum qualifying period before a cohabitant could claim rights. The Law Commission took the view, yes, there should be and then came up with certain suggestions as to how long that qualifying period might be. So there's a lot of scope for debate on this but the key point, it seems to me, is that something needs to be done.

Following the legal aid reforms, will the increased number of parties representing themselves mean the role of family judges will become more inquisitorial?

I am not suggesting for a moment that we go over, even in the family court, to a continental style inquisitorial system. The fact is we have an adversarial system but--and it's a very big but--it is a system which, particularly in the family court, is infinitely different from the adversarial system we had when I started out 40 years ago as a young barrister. We now have very vigorous, robust case management which has, in a very significant way, transformed the system, so it is already, in part, inquisitorial, in the sense that it's the judge who sets the agenda.

The new thing we've got to grapple with, given that there is so little legal aid now in private law cases, is that the adversarial system assumes axiomatically that the litigants will be represented, at least if they wish to be represented. The big change now is that we have litigants in person who are less qualified by wish, by ability or by personality to represent themselves in court which inevitably is going to have an impact upon the way in which the judge handles the case. If you have two litigants in person arguing a family case that simply will not work. It is simply a recipe for injustice and it seems to me inevitable that the process in court has got to become more inquisitorial than it has in the past. That doesn't mean we're going to end up with a continental-style inquisitorial system but we are already a long way removed from the traditional adversarial system.

Have the family justice reforms been undermined by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 changes which have seen mediation numbers, for instance, drop radically?

The simple answer at present is no. The reduction in the number of mediations is not caused by the withdrawal of legal aid. It is caused by other factors, many of which should have been, but were not, foreseen by government. We are in a very serious situation in relation to mediation but there is some hope that things are now being taken in hand. I think we can see in the coming months an increase in the use of mediation, partly because it is going to be compulsory to at least consider mediation before you come to court and partly because effective steps are about to be taken to ensure that the public money which is available for them is actually taken up.

Could take-up of mediation be improved by making MIAMs  compulsory for the respondent as well as the applicant and by judges making costs sanctions if one party doesn't engage in mediation, as suggested in Mann v Mann [2014] EWHC 537 (Fam), [2014] All ER (D) 79 (Mar)?

I don't have a strong view whether MIAMs should be made compulsory for respondents. The issue is changing mindsets and getting the message across that mediations can produce tailor-made solutions that work better than going to court.

The trouble with cost sanctions is they tend not to work if one's dealing with ordinary people in private law cases. They often don't have the money and a cost sanction imposed on the application of one side is likely to make matters worse rather than better. Part of the reform arrangements embodied in the Child Arrangements Programme is an additional emphasis on the obligation of judges at every stage in the process to push the idea of mediation before the litigants.

What are the next steps you would like to take in improving transparency in the family courts to counter criticism that they operate secret justice?

We have got to make radical changes. Rightly or wrongly, I have taken the view we need to proceed incrementally. I'm about to go out to consultation on proposals for what the next steps may be. One of those is whether the media should be entitled, subject to appropriate safeguards and conditions, to access to at least some of the court documents. The reforms of April 2009, which entitled the media to attend family court proceedings, have proved completely futile because, without access to any of the documents, it's almost impossible for the media to understand what is going on.

When it comes to public law, the Supreme Court ruled in Re B [2013] UKSC 33, [2013] 2 FCR 525 that adoption should be the last resort only months after government guidance that local authorities should move away from that stance. What should local authorities do?

I'd be foolish not to acknowledge that there is a clear tension between what the Supreme Court said in Re B and what the government has said in guidance. I appreciate that on the ground, it must be difficult for social workers dealing with adoption to know what they should be doing. But under our system, while Parliament makes the law, the judges interpret it and if the Parliament does not agree with the judges' interpretation, then the remedy is for Parliament to change the law.

Report by Grania Langdon-Down.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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About the author:

Geraldine is Head of LexisPSL Family. She was admitted as a solicitor in 1992 and was in practice for 15 years, most recently as a partner and head of the family team at Hart Brown, a large Surrey firm.

Geraldine writes for Butterworths Family Law Service and is a past editor of the Resolution Review. She has been published in the New Law Journal, the Law Society Gazette and the District Judges’ Bulletin as well as in the national press including the Times and the Telegraph.

When in practice she was a member of the Law Society Family and Children Panels, and an accredited Resolution Specialist with a focus on advanced financial provision and pensions. A past Resolution regional secretary and press officer, Geraldine also contributed chapters to the Resolution publications, International Aspects of Family Law (3rd Edition 2009) and The Modern Family (2012).