On this page, you can find the December 2018 response from National Family Mediation to the government’s consultation on reform of the legal requirements of divorce.
Reform of the legal requirements of divorce: Consultation response from National Family Mediation
Introduction
As a member of the Family Mediation Council, we have also contributed to that body’s submission to the consultation process, but are pleased to provide this document, which was written following consultation with members and affiliates of NFM, the largest provider of family mediation in England and Wales.
Our response to the consultation is naturally geared towards the impact of current and future divorce laws upon our professional practice.
Summary
Facing a divorce is one of the biggest crisis points in anyone’s life, so it is particularly important that the process is as simple and straightforward as possible.
Therefore we fully agree with the government that reform of the divorce laws is badly needed and, we would contend, long overdue.
Current divorce laws have a very negative effect on the culture of divorce, and in our view Ministers are right to focus reform efforts on ensuring a less confrontational process.
Finding fault
Current divorce laws which mean someone has to be proved ‘at fault’ – even when a couple agrees on the need to separate – creates a bidding war which then often escalates to a full-blown courtroom battle brimming with resentment and anger, to the detriment of the future of everyone in the family.
The current processes leave divorce much too tangled up in arcane legal processes which have acquired a mystical quality that serves to confuse and defeat those who are undergoing the biggest crisis of their lives.
The laws fuel conflict and only serve to promote protracted litigation, costing families a fortune.
The current legal need to prove a spouse’s ‘unreasonable behaviour’ fuels bad feeling between a couple. In our experience very often we find that couples who, for whatever reason, have decided to separate just want to get on with it, and make a fresh start.
Reducing conflict, and helping couples ‘move on’
We concede that mediation in its own right plays a relatively small role in the overall divorce process, although it is worth noting that family mediators sometimes discuss and agree with couples the grounds for divorce. Depending on their shape, government reforms may in fact even remove this mediator role, by removing an area of potential conflict, and in our view this would be most welcome.
Removing the concept of ‘blame’ from the divorce process must, in our view, form a fundamental cornerstone of any law reform, as it would considerably reduce the conflict between parties.
From a professional perspective, we believe that removal of blame will improve the willingness of people to take part in mediation, as they will be more emotionally ready to do so. This would increase the numbers of divorcing couples using the process. So a by-product of divorce law reform would be a boost for government objectives of improving mediation take-up.
We would welcome the provision for notice to be given jointly by both parties to the marriage, not only as we believe this could considerably reduce conflict, but also because it could set the scene for further joint applications (for example in relation to child arrangements and financial settlements). It would alter the culture of divorce in the UK and promote shared responsibility to settle the issues of a broken marriage together. In turn this could allow for rules to require both parties to be required to attend MIAMs that would allow people to come to mediation and put in place suitable arrangements for each other, and especially their children, following the end of their marriage
Determining a minimum period or timescale that would be most appropriate to reduce family conflict would be difficult to pinpoint, not least because each family has a unique set of circumstances and there are different triggers for action in each case. However, retaining the pause between the decree nisi and decree absolute could be used more effectively, and the decree absolute should only be granted when satisfactory child and financial arrangements are put in place.
Modernising divorce processes and language
Elsewhere we have warmly welcomed the innovative digital work being undertaken by HM Courts and Tribunal Service in developing online tools to help people manage various elements of divorce. Therefore we request that, in progressing reform, Ministers work with Ministry of Justice digital colleagues to ensure future processes are as streamlined as possible. Bringing these processes online makes them much more accessible which, by definition, can provide better access to justice and swifter resolution to seemingly-complicated procedures.
We would also ask the government to address issues surrounding the language currently used in the divorce process. The last thing people need at their time of crisis is to have to get to grips with a new set of legal jargon – words like ‘affidavit’. ‘plaintiff’ and ‘respondent’ – simply in order to move on with their lives. We request Ministers take the opportunity of legal reform to also bring the language of divorce into the 21st century, using words we can all understand.
Jane Robey
CEO, National Family Mediation
December 2018
