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06/05/2014 By: Sebastian Allen
In a wide ranging press meeting, Sir James Munby, President of the Family Division, shared his views on divorce, cohabitation, litigants in person, transparency in hearings, inquisitorial judges, mediation and, well, everything else.
He called for a radical overhaul of the divorce process, cohabitation rights for unmarried couples and granting greater powers to the media to gain access to private family law hearings. In addition, he strongly advocated the need for “changing mind-sets” and “cultures” over the use of mediation.
The most senior family law judge in the country brought “a bit of intellectual honesty” to the issue of whether divorce by consent already occurs in practice. References to “consent” relate to divorce petitions that are drafted amicably between solicitors, and are uncontested (these are the overwhelming majority of divorce petitions). In Sir James’s view, divorce by consent has been around for the “best part of 30 years”. In truth, Sir James has a point. The numbers of defended divorces, i.e. those that dispute the marriage has irretrievably broken down, are miniscule – or in his words “invisible”.
He went further still, adding that he would like the process to be removed from the court completely, drawing a parallel to other countries where the divorce is treated as “an administrative matter dealt with by what, using our terminology, one might describe as the registrar of births, deaths, marriages and divorces.” Practitioners have long been calling for reform in this area, so Sir James’s endorsement is well received.
He called for “something to be done” about the lack of cohabitation rights to ensure unmarried women weren’t “thrown on the scrapheap” after a relationship breakdown. The government has no intention to legislate in this area; so for now, unmarried couples will not see their position improved.
Sir James then turned his attention to the increasing number of “less qualified” litigants in person, and explained how they naturally gave rise to judges taking a more active role in case management, rather than being “sphinx-like”: “when I began there were judges who sat there sphinx-like and said nothing until they gave judgment … in the modern world if you have two litigants in person arguing a family case that simply will not work. It will not produce justice. It is simply a recipe for injustice and it seems to me inevitable that … the process in court before the judge, where there are litigants in person, has got to become more inquisitorial than it has in the past.
Sir James has been passionate about opening up the justice system to the press and the public to counter the perception that the family courts are “secret”. He plans to build on the changes he has already made and we can expect further reform.
And finally… The new family law reforms have made it compulsory for couples to mediate before litigating, and judges will now suggest mediating issues between parties at any and every stage. Sir James is a firm proponent of mediation, and intends for the reforms to change “mind-sets” about what mediation is and what it can achieve. Sir James thought that the reason that mediation is not always considered as the first option is because couples do not fully understand what it mediation actually is. It is not, as Sir James says, reconciliation. You can find out more information on the mediation section of our website.