Family law
CILEx backs divorce reform but cautions: ‘Don’t make it too easy’
CILEx has backed the government’s plan to reform the process for divorce and the dissolution of civil partnerships, but cautioned that it must not become too easy.
Responding to the Ministry of Justice’s (MoJ) consultation on reforming the legal requirements, CILEx said: ‘With family law principles advocating for the use of a conciliatory approach, minimising harm for all involved, it stands to reason that a divorce process predicated on finding fault is no longer fit for purpose.’
But the Chartered Institute stressed the importance of the process having a ‘requisite level of formality’ to ensure that the process did not lose its significance.
‘This is not only to protect the sanctity of marriage/civil partnerships, but to further prevent these legal relationships from being exploited as a tool for economic gain.’ CILEx liaised with practitioners through its Family Law Specialist Reference Group in reaching its support for the MoJ’s proposals, which would simply require one or both parties to declare that the marriage or civil partnership had irretrievably broken down, without having to lay out the details.
On the question of whether one or both parties should have to give notice to the court that the marriage/civil partnership has broken down, the Chartered Institute added: ‘CILEx is mindful that there are arguments against unilateral divorce, however finds this approach to be realistic in recognising that a marriage/ civil partnership, which fundamentally requires there to be commitment from both parties, shall no longer exist in substance where one party is no longer committed to it.’
There were a couple of areas where CILEx urged the MoJ to think further. The ministry proposes to retain the ban on divorce or dissolution in the first year, but CILEx said that it needed to consider exceptions for cases of domestic abuse and forced marriages.
The survey of members also found support for the current timeframe of divorce – there must be a minimum of six weeks and a day between the decree nisi and decree absolute – while the MoJ is considering extending that to six months.
CILEx president Philip Sherwood, says: ‘This is a positive proposal that we anticipate will attract broad support. The government needs to strike the right balance between making divorce law fit for the future without downplaying its significance to those involved, and we are hopeful that, with a few tweaks, this reform will achieve that.’
- 'Ministry of Justice consultation – ‘Reducing family conflict: reform of the legal requirements for divorce’. A response by the Chartered Institute of Legal Executives’, December 2018, available at: https://tinyurl.com/yb4cbuhc