No-fault divorces "should be standard" says top family judge

Dated:

According to the most senior family law judge in England and Wales, couples should be granted legal separation, quickly and without shame, as a matter of course.

family law

The president of the High Court's family division, Sir Nicholas Wall, said 'no-fault' divorces should become the standard way for couples to separate.

Sir Nicholas said the time was passed for allocating blame for the failure of a marriage, as encouraged by an adversarial court system.

Explaining that divorce is no longer considered shameful, with no need for one party to be regarded as 'innocent' merely to retain their standing in society, Sir Nicholas said, "I am a strong believer in marriage. But I see no good arguments against no-fault divorce."

Sir Nicholas was speaking in Leeds at the annual meeting of Resolution, the family lawyers' organisation.

"At the moment we have a system, so far as divorce itself is concerned, which is administrative, but which masquerades as judicial," noted Sir Nicholas.

"No doubt this has its roots in history. In the 19th century and for much of the 20th, divorce was a matter of social status – it mattered whether you were divorced or not, and if you were, it was important to demonstrate that you were the 'innocent' party.

"All that, I think, has gone. Defended divorces are now effectively unheard of."

Sir Nicholas sat on the Whitehall advisory group that backed no-fault divorces in the Family Law Act 1996. However, plans were subsequently scrapped by the incoming Labour government after opponents argued that a no-fault model made divorce too easy.

Sir Nicholas criticised the fact that the family justice system had been absorbed by adversarial common law. "However inquisitorial we try to be, there are some issues of fact, particularly in public law, which have to be decided adversarially."

In order that more victims are entitled to legal support, Sir Nicholas called for government backing for expanding the definition of domestic abuse within the Legal Aid, Sentencing and Punishment of Offenders Bill currently before Parliament.

The judge also reiterated the judiciary's concerns that legal aid cuts could lead to a flooding of the courts with claims unsupported by legal representation.

"We are undoubtedly going to see a substantial increase in litigants in person (LIPs), or 'self-represented litigants' (SRLs) as we must now learn to call them," Sir Nicholas concluded.

"LIPs or SRLs come in all shapes and sizes. Some are very good. But as a rule of thumb, there is no doubt that they slow us down. Few, for example, can cross-examine or understand the process of cross-examination."

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