Report backs MoJ to simplify divorce process
Last month the Ministry of Justice (MoJ) published research of international processes that highlighted the challenges of the divorce process for litigants in person across England and Wales. The MoJ have since announced that it intends to reform the legal requirements surrounding divorce ‘very soon’ in a bid to simplify the process.
According to a report from the Nuffield Foundation, titled “Reforming the Ground for Divorce: Experiences from Other Jurisdictions”, the process that leads to finalising a divorce is greater in England and Wales than anywhere else.
Divorce process in Wales contrasts with elsewhere
The procedure in other jurisdictions across the world is generally very simple, with only one or two mandatory procedures or legal steps in place that lead to the divorce. This simplicity is in stark contrast to the measures in place within England and Wales, where the desire to divorce must be reaffirmed on several occasions - at the application for divorce stage, during the application for decree nisi and then once again with the application for decree absolute.
In European countries such as Finland and Sweden, just two mandatory steps are required - application and request to reopen proceedings if a ‘reconsideration’ period is required. On the other side of the world in Australia and New Zealand, divorce decrees become final after just one month. In New Zealand, orders that are made by a judge at an undefended hearing come into effect immediately.
The Nuffield Foundation report states that the multiple mandatory stages approach that’s currently in place in England and Wales is rooted in a very different approach to divorce, with each party having to repeatedly prove their entitlement to divorce, a concern about collusion between the parties and low confidence in the capacity of the parties to make their own decisions.
MoJ advised to consider possibility of simplifying divorce process
The ministry has been advised to consider the possibility of reducing the three steps that are currently in place to two, as this would significantly reduce administrative duties on the court while also assisting litigants in person who may not be aware that they must apply for a decree nisi and decree absolute.
The report claims that each stage of the divorce process is likely to frustrate the divorce through inertia, and that it requires prolonged active consideration and ongoing consent for those who are particularly concerned about marriage stability.
The report does consider the positive side to retaining the three-step approach, by acknowledging that removing the need to allege fault from the process could lead to parties taking the decision to divorce more lightly then at present.
Lord Chancellor David Gauke has already stated that he wants to abolish the need to allege fault as part of wider reform, claiming that it’s an ‘archaic requirement’. The ministry’s consultation closed at the end of 2018, and a spokesperson has said that the response is imminent.
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