Is it time divorce and financial claims procedures were separated?
Separating couples can find that their divorce takes many months and years to go through the legal process. Could a move to separate out some of the steps, and more online divorces, speed things up?
Sir James Munby, the most senior family law judge, has strongly recommended the introduction of a new de-linked procedure in which divorce proceedings and financial disputes are treated separately. The procedural aspect of divorce proceedings is a mostly administrative task, and the fact that the courts are struggling to cope with the increasing number of people representing themselves, due to the large withdrawal of legal aid (public funding) in recent years. By contrast, there is a need for the court to continue to perform a significant role with regard to contentious financial disputes.
Sir James believes that such a procedure will create a simpler and more effective process in respect of both divorces and financial proceedings. He questions:
“Has the time not come to bring about a complete de-linking – separation – of divorce and ‘money’… so that they are started and pursued by completely separate processes, albeit, of course, that the timeline for ancillary relief is determined by the progress of the divorce? My view, which I have been propounding for some time, is an unequivocal and emphatic yes!”
He suggests the internet would aid this process in which divorce proceedings would be moved online. Sir James recognised, however, that Parliament's "lamentable history of procrastination," will make it unlikely that any change would happen soon. In the current political climate, it is unlikely such a change will be a priority.
Whilst there is a need for unrepresented litigants to receive the help they need, and for the burden on the courts to be minimised, it is still very important for financial matters to be sorted out alongside a divorce.
It is possible to be divorced but for your financial claims to be left open against one another unless these are properly dealt with. It would need to be made clear to unrepresented couples, therefore, that this is the case.
It would also be helpful if the ambit for legal aid could be increased so that at least initial meetings with solicitors could be funded to make people aware of the legal position and their options as to how to resolve matters. Again, in the current political climate, this is expressed more as a hope than in expectation!