Zahra Deera
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Separating divorce from money battles

Zahra Deera

In a recent statement, Sir James Munby, President of the Family Division, has heavily criticised the “lamentable” state of divorce proceedings in England and Wales. This is particularly on the basis that the majority of the time spent on divorce proceedings is not to do with the divorce itself, but rather on achieving a financial settlement between the parties. This week we explore these claims in the context of divorce law in England and Wales to understand whether divorce proceedings can truly be separated from ‘money battles’.

Overview of Sir James Munby’s comments

In his recent commentary on the state of the family courts, Sir James Munby highlighted that the financial aspect of divorce is often not the primary factor in how proceedings come about. It is, therefore, illogical that the English system has developed in a way where the financial aspect of divorce plays such a leading role when parties bring a claim to the courts. Such statements aren’t unjustified – the English legal system’s title as the ‘divorce capital of the world’ is hugely driven by the ease with which some parties – can obtain large settlements on divorce. To a degree, the blame may be placed on the lack of ‘no-fault’ divorce in the system. This potentially adds to the hostility to the proceedings, creating an apparent outcome of a ‘winner’ and ‘loser’ which many lawyers have argued to be outdated and in need of reform.

Introducing primary legislation is perhaps not the way to deal with this, and indeed Munby presents a potential solution of online divorce proceedings as a mechanism to ‘de-link’ divorce from monetary claims. What is required, he said, is a system where there is “formally, legally and procedurally” a complete separation of divorce and money – with money claims being dealt with “in accordance with a single set of rules providing a common form of application”. But is this total separation a good way to reduce the emphasis on financial remedy in divorce proceedings?

The Other Side

One might argue in the alternative that the financial element of a divorce is tied-in to the context of each case, and as such it is impossible to truly separate the two elements. In fact, once considerations as to where children live are removed from the relationship breakdown, money is likely to be a key factor in almost every divorce.  A household with two incomes, or at least two sets of resources whether they are financial or time-based, does not easily divide into two separate households, certainly not if the standard of living is to be maintained.

This being said, Munby does highlight significant reasons as to why divorce proceedings and financial settlements should be kept separate. In particular, to relieve the pressure on the Family Courts when such decisions have in the past resulted in heavy involvement of judges.

The reality is that there will always be one person who is at a disadvantage at the outcome of divorce proceedings, and the financial element is intrinsically wound up in decision of the courts in a way which cannot be easily separated. While the introduction of an online system for financial claims could potentially ring-fence what is a “largely administrative and bureaucratic” process, this is a decision which cannot be easily decided on.

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