Sir James Munby, the President of the Family Division and most senior family judge in England and Wales, has suggested that in future, divorces should stop being handled by judges and may instead be the responsibility of a Registrar of Births, Deaths, Marriages and Divorces.
This process arguably may have already started. The new single Family Court assumed responsibility for almost all family cases on 22 April 2014, replacing the old three-tier system of County Courts, Family Proceedings Court and the High Court. In the old family justice system, County Court District Judges decided whether someone was entitled to a divorce, by assessing if there were sufficient grounds for divorce and checking if all the formalities were in order.
However, in the new Family Court, District Judges no longer do this. Instead, Legal Advisers (known until a few years ago as Justice’s Clerks) decide whether to issue a certificate of entitlement to a divorce. The Legal Advisers’ role was to advise lay magistrates in the old Family Proceedings Court. Although they are qualified lawyers, they are not judges. The new Family Court is designed to allow HM Courts & Tribunals Service to use its resources more efficiently in order to provide speedier justice; having District Judges deal with relatively simple tasks such as assessing whether someone is entitled to a divorce is seen as a waste of judicial time, especially now that the court no longer has to consider the proposed arrangements for children after a divorce.
Sir James Munby justifies the use of an administrator such as a Registrar to handle divorces by pointing out that disputes about children are already handled entirely separately from divorce. Judges would of course still be a crucial part of the family justice process as they would instead concentrate on dealing with disputes about finances, children, domestic violence cases and (presumably) very rare defended divorce proceedings.
The transformation of divorce from a court process to an administrative one is likely in my view to gain momentum if and when the government finally gets around to introducing no-fault divorce. Its arrival has been long delayed (it was supposed to be brought in in the late 1990’s), but I suspect it is inevitable. There will no doubt be some who would decry the end of the judge’s involvement, fearing that it will make divorce easier, but the reality is that it is already legally easy to divorce, whether it’s handled by a judge or a Registrar of Births, Deaths, Marriages and Divorces.
29 April 2014