Saturday, 7 July 2018

'No good arguments against no fault divorce', top judge says

Britain's leading family law judge, Sir Nicholas Wall, has renewed calls for "no fault divorce", which could see couples granted quick legal separation without one party accepting the blame.

Sir Nicholas, President of the Family Division, said he could "see no good arguments against no fault divorce", as society moves away from viewing permanent separation as shameful.

He claimed divorce was now an "administrative" process rather than judicial, and said it was no longer important "to demonstrate that you were the 'innocent' party."

In a speech to family lawyers, he said current legislation had "its roots in history", when divorce was a "matter of social status and added: "All that, I think, has gone. Defended divorces are now effectively unheard of."

His words, delivered at the annual conference of Resolution in Leeds on Saturday, have been echoed by Lord Justice Thorpe in an Appeal Court ruling on a contested divorce.

In it, he said the "painful investigations" to establish fault in divorce cases "now seem to represent the social values of a bygone age."

The concept of no fault divorce was originally proposed as part of the Family Law Act 1996, but were criticised by opponents as making it too easy for couples to break up.

Sir Nicholas added: "As a student, of course, I grew up with the three Cs – connivance, collusion and condonation. All those have gone.

"It seems to me, therefore, that the time for no fault divorce has also come."

In the same speech, he also spoke of cuts to legal aid, which he believes could make divorces and family disputes longer, more difficult and more expensive as parties increasingly represent themselves.

He claimed the changes and reductions in legal aid will “undoubtedly” lead to a “substantial increase in litigants in person”, making cases more difficult, as complainants fail to understand court processes such as cross-examination.

Stating that he would “work on the premise that the changes …are going to happen”, he said: “We are undoubtedly going to see a substantial increase in litigants in person.

“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.”

Sir Nicholas, who has already publicly criticised legal aid cuts, said those representing themselves in family law courts will often have the “most difficult and intransigent cases”.

If they are not suitable for an alternative mediation process, he added, “cases will take longer and become more difficult” without proper legal representation.

He said: “Although good lawyers cost money, they also save it.”

In his speech, Sir Nicholas said he considers it difficult to disagree with the finding of a recent Civil Justice Counil report, which found: “Forthcoming reductions and changes in legal aid will have the most serious consequences.”


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