The Family Mediation Council has submitted its response to the Ministry of Justice’s Consultation, Reducing Family Conflict, which sets out the government’s proposals for ‘no-fault divorce’. The FMC’s response is set out below.
FMC Response to the Ministry of Justice’s Consultation: Reducing Family Conflict – Reform of the legal requirements for divorce
The Family Mediation Council (FMC) exists to promote the use of mediation to resolve disputes arising out of family breakdown, for the benefit of the public. It welcomes the opportunity to respond to this consultation on reducing family conflict.
Mediators do not routinely become involved in helping parties decide how to go about applying for a divorce, though mediators do sometimes carry out this role. Family mediation therefore plays a very small role in divorce itself, but it can play a much larger role alongside or following the divorce process, as parties to the divorce seek to make arrangements for children or finances following separation. The divorce process can have an effect on the way that parties to the divorce choose to resolve related disputes, including whether they choose to mediate, and their approach if they do choose to do so.
The FMC has limited its response to the two questions in the consultation which are most relevant to its work (q.2 & 3). It supports the proposals set out in the consultation, believing that they would reduce family conflict. It also believes that conflict can be further reduced by using the opportunities presented by the proposed divorce process to promote and encourage people to access family mediation as a means to settle disputes that may arise out of the divorce.
Q.2 In principle, do you agree with the proposal to replace the five facts with a notification process?
Yes.
The FMC believes that the current law concerning divorce has a negative impact on the culture of divorce in England and Wales.
The proposal to replace the five facts with a notification that the marriage has broken down irretrievably is welcome. It would remove the possibility of an element of blame being the basis of the divorce and could lead to reduced conflict between parties. In turn, that might mean that participants’ emotional readiness to mediate improves as a result.
Conflict could be further reduced if people are urged to consider mediation, as part of the process of divorcing, where they need to make arrangements for children or finances. As the legal process offers an early opportunity to influence the way in which couples resolve any related disputes, the FMC encourages the MoJ to ensure that the benefits of mediation are espoused to divorcing couples as early as possible in that legal process. The FMC believes that the proposed reformed divorce process could be linked to new programmes being developed by MoJ digital teams which encourage parties to settle their disputes other than in the court room.
Q.3 Do you consider that provision should be made for notice to be given jointly by both parties to the marriage as well as for notice to be given by only one party?
Yes.
If a joint notification could be made for divorce, that would reduce conflict and blame further and help lead to a much-needed change in culture (i.e. ‘we’re divorcing’ rather than ‘s/he’s divorcing me’ or ‘I’m divorcing them’). As part of this change of divorce climate, practical support to learn about and arrange mediation should be made available to divorcing couples.
A joint application for divorce would also:
- pave the way for other joint applications relating to the marriage (especially those concerning finances or arrangements for children). Both parties to a divorce or to an application to resolve disputes relating to finances or child arrangements have an interest in resolving these issues, but the process treats them differently. At present, the fact that one person has to assume the role of ‘applicant’ and the other ‘respondent’ means that they are treated differently by the court process, with the applicant having to attend a Mediation Information and Assessment Meeting (MIAM) before issuing proceedings, but the respondent not being required to do so;
- give scope for a change in the rules, to require both parties to attend a MIAM in child arrangements or financial cases;
- thus lead to a consequential increase in the parties reaching agreement through mediation.
10th December 2018
