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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
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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).
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