Divorcing Divorce and Finances

Is it now time to uncouple the process of Divorce and Financial Remedy?

Divorce, should financial remedy and child arrangements be linked to the divorce

As a family law solicitor, one of the most common misconceptions is the belief that the divorce deals with all elements of a married couple’s separation including assets and the arrangements of the children. This is not correct the divorce is the dissolution of the legal entity of the marriage and is not concerned with the children or money. This misconception can be forgiven as the court process of resolving the matrimonial finances known as financial remedy (previously known as ancillary relief) is intrinsically linked due to the administrative process of getting a divorce.

It is possible to divorce without dealing with the matrimonial finances but if you do, the legal administrative process of financial remedy becomes linked to the divorce. But the question is for how long?

On 17May 2017  The President of the Family Law Division, Lord Justice Munby published his latest versions of “view from the president’s chamber” entitled “Divorce and money – where are we and where are we going?”  Within the publication Lord Munby discusses his view that the process of divorce and matrimonial finances should become completely separate and mentions a pilot scheme which is testing a very limited element of the separation of the two processes.

For almost two years now the process of the divorce has been centralised to a small number of designated divorce centres rather than with the previous system of sending the applications to your local county court. At present any applications for financial remedy are also sent to the relevant divorce centre then, depending on the issues involved, they are redirected to your local county court and at the same time the divorce is also transferred to that court. The financial case is dealt with under the same case number and on the same court file as the divorce.

The divorce centres were designed to take away the burden and the workload pressure of divorce from your local county court. Currently if an application of financial remedy is made it will require a court hearing which will then send your divorce to the county court too. In a system that is already under great strain, surely this process at least could be streamlined?

Summarising his proposal, the President Lord Justice Munby suggests:

 “…what is called for is a system under which (1) there is, formally, legally and procedurally, a complete de-linking – separation – of divorce and money and (2) all money claims as I have described them above are dealt with in accordance with a single set of rules providing, so far as possible, for a common form of application, a common set of forms, a common process and common procedure.” 

So, how could this be achieved?

There has been much debate over a number of years as to an overhaul of the divorce process and the need for the introduction of a “no fault” Divorce. The difficulty in this is that new primary legislation would need to be passed by government and this never seems to get high enough on the political agenda to be achieved. In respect of procedural changes however these can, as explored by Lord Munby in his latest view document, be achieved through amendments to the Family Procedure Rules and Practice Directions. Therefore he seems to me to be suggesting that his vision for a separation of the two systems may be achievable in the not too distant future.

In terms of what this new system will look like, we can only speculate and the President does not elaborate in great detail in his latest “view” but it is hoped that it would reduce delays, particularly in respect of the issuing of the application. At present on the ground it appears to take a number of weeks for the Form A (Notice of (intention to proceed with) an application for a financial order) and the standard directions to be issued. This is significant because it is at least 12 weeks from the issue of Form A until your first hearing date. The President comments that the sealing of consent orders will remain with the divorce centres but in my view, this is something I would want to be reconsidered. This is a further process that appears to have increasing delays and if it is returned with a query, it then goes before a different judge. This does not appear to me to be consistent with the principle of judicial continuity. A principle I am greatly in favour of.

As mentioned above, one element of separation is currently being piloted in the South West. This pilot sees the creation of a separate file when a final remedy application is issued and transferred to the local county court. This means that the divorce stays with the divorce centre but the financial remedy application is dealt with by the local court so that their resources are not consumed with both elements of the process. This will require continued communications between the two courts as the judge presiding over the financial remedy needs to know if the Decree Nisi has been pronounced or if the Decree Absolute has been granted although this appears to have been factored in by the noting of these dates on the new financial remedy file. It appears to me as a good place to start and if successful, the pilot is likely to be rolled out nationally.

What does this mean for our clients?

At the moment, nothing has changed and may not for some time. When (and if) the changes do come in they are likely to be procedural which to a lay client who is legally represented may go unnoticed; it is hoped that the new procedure, if realised, will streamline the process, reduce delay and relieve at least some pressure upon our already strained court system.

If you would like any further advice on this or any other Family Law or Divorce matter please contact Louise Ballantyne , Senior Solicitor within the Family Team on 01733 882800 or email directly.

Author

Louise Ballantyne, Senior Solicitor

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.