McHale & Co. Solicitors Blog

Is there a need for Divorce Law reform?

Last week Sir Paul Coleridge announced that he is stepping down from being a full time judge.  He wishes to concentrate on looking at alternative options to court proceedings including alternative dispute resolution.

Sir Paul called for an overhaul of outdated divorce laws.  He said that the current provision of divorce and financial provision was “designed in a wholly different era to deal with a wholly different society and way of life” and is no longer fit for purpose.  He further stated that more innovative and daring alternatives need to be found.

So is he right?

It is correct that the Matrimonial Causes Act 1973 that contains the current legal provision for divorce and financial settlement is now 40 years old.    But I don’t think that society has changed so significantly since then for it to be deemed no longer fit for purpose.  The MCA continues to clearly define the criteria that the courts have to consider when faced with achieving a financial settlement.  The criteria is very much one that is still relevant today, taking the children of the family into consideration together with the parties’ needs and resources.

From a family legal advisor’s point of view the difficulty is not the law but applying the criteria to the facts in front of you.  Every case is completely different and therefore a different result will be achieved.  The resolution of family matters is difficult as it very much comes down to an informed estimate when providing your client with that all important answer to the question “what am I entitled to?”

That is because the law does not provide us with enough clarity as to “who should get what” or how it should be divided but maybe that’s because it can’t due to the very wide disparity of cases.

So what is the alternative to court?

The courts are being increasingly squeezed due to the demise of public funding and an increase in litigants in person meaning cases are taking a longer time to resolve.

Family mediation was introduced to try and reduce the difficulties at the courts and to encourage parties to settle.  The applicant to a case is supposed to file a form to confirm how mediation is not appropriate to the case.  However, in my experience the majority of courts are continuing to issue cases even where this form is not filed. Many of these cases would be suitable for mediation.

Furthermore the cost of mediation is another difficulty that clients are having to face.  One session of mediation costs approximately £180 and in the majority of cases more than one session will be required.  When advising about attending mediation to clients I often receive the response – “if I’m going to have to pay that I may as well pay you.”

I do not believe that there needs to be a complete overhaul of the current divorce law.  However I do believe that in order to relieve the pressure on the courts mediation needs to be publicised more.  The courts also need to check that parties are completing the mediation assessment form properly to ensure that mediation is being used in those cases where it is appropriate.  It is only then that it can be ascertained as to how successful mediation is as an alternative to court proceedings.

Categories: Divorce & Family Law

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