A clean break between divorce and money

Sir James Munby, president of the family division, wants to cut the Gordian knot of divorce. By suggesting that proceedings be streamlined, he summarises what is required: ‘Formally, legally, and procedurally, a complete de-linking – separation – of divorce and money.’

Published under the heading ‘17th View from the President’s Chambers: Divorce and money – where are we and where are we going?’, Munby P’s proactive argument centres on separating the divorce process, which he terms ‘largely administrative and bureaucratic’, from any settlement over who takes which assets from a marriage.

In setting out a better legal future for couples facing such changes in their lives, his vision is driven by pragmatism. When our court system is both overburdened and underfunded, it is, he suggests, a reasonable expectation that form submissions should be done online. In seeking progress, he takes his lead from Europe, where the process of divorce is usually not legal, but administrative – the rationale being that a court is not involved when you begin a marriage, so why is it involved when you end it?

Munby P supports his argument that we need to separate the administrative and financial processes by highlighting that only a minority of divorce cases give rise to a money claim. He further identifies judicial involvement in the administrative process as limited, whereas in money claims it is significant, although there is a wide range of potential outcomes according to individual circumstances.

You must still get divorced before a final severance of financial links can be achieved. Currently, the divorce can be made absolute without any need for a financial settlement, which must be via a court order confirming the terms reached. This was highlighted by the recent court decision on a claim made by Kathleen Wyatt against her former husband, Dale Vince.

The couple married in 1981, separated in 1984 when both were penniless, and divorced in 1992. Vince then went on to make his fortune. In 2011 Ms Wyatt filed a claim for a share of his money. There had been no court order on finances at the time of divorce, so the Supreme Court in 2015 could still deal with her claim. An out-of-court settlement followed, which he could easily afford, that was of real help to her.

Munby P’s reforms in the 17th View go beyond the use of online divorce to include new administrative provisions and new forms on financial claims and specialist courts. But Sir James has missed a trick.

It would not require fresh legislation or expensive redrafting to insert into the divorce petition a clear statement of the need to get a court order (usually by agreement) finalising arrangements for the future about the financial links created by marriage. The present part in a divorce petition dealing with money is often ignored, and if the boxes about finances are ticked, it looks as if a hostile claim is being made. Not user friendly. In fact, quite the opposite.

Hazel Wright is a partner at Hunters Solicitors

@HuntersLaw

www.hunters-solicitors.co.uk