This is not as radical an idea as it may sound. There have been calls for something similar to happen in England. Sir James Munby, President of the Family Division (and therefore the most senior family judge in the country) has also called for administrative divorce. He says that divorce should be dealt with by a Registrar of Births, Deaths, Marriages and Divorces.
I can see the logic behind this. You don’t need a judge to get married. Why do you need a judge to get divorced?
Sooner or later this country will adopt no-fault divorce. The Major government almost managed to introduced it in the 1990’s, but faced with backbench opposition and poorly drafted legislation, it fell by the wayside. Resolution repeatedly calls for no-fault divorce. Backbench Tory MP Richard Bacon is currently trying get a private members bill for no-fault divorce reform to be passed by the House of Commons, but it has about as much chance of passing as I have of growing a full head of hair. You can read my blog about it here.
No fault divorce is long overdue, but it will happen one day. And when it happens, why do we need judges to do it? The job of granting certificates of entitlement to a divorce has already been passed from District Judges to the court legal advisers (what used to be known as magistrates court clerks). They are qualified lawyers, and perhaps should be be seen as a kind of very junior judge, but the law is hardly rocket science and the work could be done by an administrator, especially with no–fault divorce, when procedure rather than law would hold sway.
That’s not to say that judges will lose their role in family proceedings. They would still be there to decide disputes about financial issues or children.
However, first we have to have a change in the law. While I am confident that no-fault divorce will come on day, I fear there is not as much enthusiasm among the public for it as we solicitors sometimes think there is. I have tested the water on this issue a couple of times. I recently discovered a whizzy new function on Twitter where you can take a poll. I posed the question “Should no-fault divorce be possible in England and Wales?” 100% of Respondents said Yes, which was encouraging until I realised that only two people had voted.
On another occasion, I started a petition on the government e-petition website calling for no-fault divorce. If you get 100,000 signatures, it triggers a debate in Parliament about it. I publicised it as much as I could manage. A grand total of 52 people signed the petition, leaving me 99,948 short of my target.
I am starting to suspect that people don’t really want no-fault divorce. They might tell a pollster that they’re in favour, but in truth, it’s not something they think much about; it’s not a pressing issue for them. Sometimes I do wonder if some people find all the hostility of divorce proceedings cathartic, part of the moving on and grieving process.
Until this country changes its mind, we are stuck with the divorce law that people think that they want, not the one they need. That’s democracy for you, but sometimes people don’t know what they really want. As automotive pioneer Henry Ford famously said “If I’d asked my customers what they wanted, they would have told me they wanted a faster horse.”
24th May 2016