Divorce “by consent”

The most senior family judge in England and Wales has said it is time to consider removing the need for a judge to oversee “divorce by consent”.

Sir James Munby said “no-fault” divorce could then be handled by a registrar as a purely administrative matter.

Currently, a judge will grant a divorce if a person can prove in court that a marriage has irretrievably broken down – and for that to be accepted, one of five reasons must be proven.

They are,

1. adultery,
2. unreasonable behaviour,
3. desertion after two years,
4. two years’ separation with the consent of both parties,
5. or five years’ separation without mutual consent.

Only two years’ separation with consent has an element of no-fault, but it must be accepted as the reason by both spouses.

The concerns about this are that it could make the system open to abuse, make marriage more disposable and therefore increase divorce rates.

Perhaps the judges are looking at this from their own perspective because a ‘no fault’ divorce would relieve them of certain (and burdensome) administrative duties.

My own view is that in practice it is very rare for a party to actually defend a divorce. But it is not possible for a couple to get a divorce without blame unless they have been separated for at least two years. For many, waiting two years to sort out their finances rules out this option. This means that they must record details either of their partner’s adultery or their unreasonable behaviour in order to proceed with the divorce, making an already difficult and distressing process even harder. This seems particularly pointless given that the reasons for divorce make no difference to any financial settlement or children arrangement but what it can do is raise the temperature of the case and make it much harder for an overall agreement to be reached.

People should be allowed to divorce with dignity rather than having to blame each other.