Rainscourt Family Law Solicitors

Do we need to go to court to get a divorce?

I am a Francophile, and enjoy keeping up with the French news when I can.  Their media is as interested in divorce as our media is here in the UK.  This week I read a family law story about a consultation which is currently under way as to whether judges really need to be involved in a consensual divorce.  As a way of clearing backlogged courts, it has been proposed that instead a “greffier”, a registrar or clerk, can deal with these cases.  Opponents have suggested that the better method of clearing the courts would be via the route of mediation.

In England and Wales you do need to involve a court to get a divorce.  Divorce papers are issued by clerks, and the judge becomes involved at the Decree Nisi stage, the first stage of divorce.  This application is made by the Petitioner, after the petition has been acknowledged by the Respondent, and the Petitioner will need to answer such questions as “is the behaviour continuing” if the Petitioner has issued an unreasonable behaviour petition.  The forthcoming changes to family law remove the express requirement for consideration by a judge as to the divorce’s impact on the situation of the children of the family which limits the involvement of the judge in that respect.

Is this French move an idea that we could be considering in the English and Welsh courts? As Legal Advisors are going to be allocating cases to the appropriate courts, is this a task which could be allocated to them?  Whilst the system remains fault based, the lawyers’ patter when asked about divorce is that it is usually a paperwork exercise, unless there are issues of jurisdiction to think about.  Who issues the petition and the fact upon which they rely is, in the vast majority of cases, a practical decision rather than a tactical one.

The issue of who pays for the divorce (not finances) is often a decision which falls to a judge to decide when looking at the Decree Nisi paperwork, and clearly the French option of applying for a consensual divorce is not an option available to this jurisdiction whilst fault remains a requirement.  The requirement that one party must blame the other from the outset in order to obtain a divorce does not support the government’s agenda to promote the conciliatory divorce.

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