Response to consultation
In the Lord Chancellor’s Reducing family conflict Government response to the consultation on reform of the legal requirements for divorce, Ministry of Justice, April 2019 (‘the Response’) he sets out his concerns that the law be used to minimise ‘the potential for couples to entrench positions as against each other’ (p 3) and to reduce the damage for children involved. That said, mediation for families receives no serious consideration in the Response. Absence of support for mediation in relation to a document which deals with family breakdown is disappointing.
I entirely accept that fault should be eliminated from the divorce process. However to say that an assertion proves that assertion (of marriage breakdown, in this case), as does the Response, and to retain judges to adjudicate (but adjudicate on what?), with only infinitesimal right of challenge feels illogical.
That said, I accept that all that follows awaits legislation and detailed court rules. No draft bill accompanied the Response. How much of what is proposed will be in statute, and how much in rules (probably in Family Procedure Rules 2010 Pt 7) remains to be seen. Aspects of what the government propose appear still to be under review.
Two aspects of the proposed reforms will be considered here:
- The ground for divorce
- The ‘removal of the opportunity to contest’
Grounds for divorce
The central passage of the Response recommends that irretrievable breakdown should remain the sole ground for divorce, as now; but that this should be based on a ‘notification’ process. The court should remain involved; but the judge has no adjudicative capacity since no issue on which a judge is required arises (save on eg jurisdiction and validity). The response at p 26):
We propose that the legal process for ending a marriage or civil partnership should start with a statement that the marriage or civil partnership has irretrievably broken down. In the consultation paper we in places referred this as a “notification” process…. We are clear that the decision to grant a divorce remains a legal decision for the court to make.
The Response goes on to identify matters to be dealt with by the judge: ‘A divorce is a fundamental change of legal status that will alter people’s rights and responsibilities’. But to what extent, and on what evidence, will judges check up on these things? The Response particularly mentions:
- Whether the court has the jurisdiction to grant a divorce,
- Is there a legal marriage for it to dissolve?
‘These are important legal safeguards’. So they are, especially in a jurisdiction where the sole arbiter of marriage is a 70 year old consolation statute (Marriage Act 1949) which dates back to the eighteenth century. So says the Response:
Where these legal safeguards are met, we propose that a statement to the court from one party to a marriage that the marriage has irretrievably broken down should be sufficient on its own to satisfy the legal threshold for obtaining a divorce.
But has the Lord Chancellor thought about how these matters will be checked administratively? Will an applicant have to satisfy the court administration before filing a statement? And what of collusive statements (eg to evade immigration rules)? How will this be dealt with in a system which says any ‘opportunity to contest’ is removed?
Challenge to the divorce application
The default position of the Response is that any challenge to a ‘notification’ statement should be excluded (p 29):
The Government therefore continues to believe that the ability to contest a divorce on other bases, such as disagreement with the other party’s decision to divorce, does not serve the interests of either party.
The law remains as now on ‘void marriage’ and ‘non-marriage’. There must be potential at least to reply on that basis; but how will that be dealt with? To a degree this last point is answered by the Response (at p 29):
In all cases, a divorce application could still be challenged on the bases of jurisdiction, validity of the marriage, fraud or coercion and procedural compliance. The court’s power to refer matters to the Queen’s Proctor also strengthens this safeguard.
There remains something uncomfortable about a court being required by statute to accept a statement from one party, where the other’s right to reply is highly restricted. Some basis for irretrievability (say living apart for a period) would give it substance beyond what could sometimes be little more than one party’s whim.
If the court is to remain involved in this proposed dissolution process, then it must be recalled that two of the fundamental bases of natural justice are notice and hearing both sides (audi alterem partem). Notice will be established by rules as to service. A legal system which only enables a party to state facts – it is irretrievable breakdown because the applicant says so – makes the court just a registrar. To say that that highly subjective assertion has in addition to be proved by a simple fact, capable or verification or corroboration (and of being denied by a respondent in those rare cases where there was doubt as to the fact) – would surely be more fair?
If the court is to be a registrar of divorce only, let us say so. No doubt a computer can be harnessed appropriately. If a divorce issue arises, or (say) the Queen’s Proctor becomes involved, then access into the court system can be arranged.