Digital divorce must be better than a Dickensian duel

It's better to end a painful separation as friends than warring foes, and a quick online breaking of the marriage contract might help with that

Simon Kelner
Wednesday 02 March 2016 11:03
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Getting a divorce could be a few clicks away in future.
Getting a divorce could be a few clicks away in future.

Sir James Munby has become something of a hero of mine, for reasons I will explain later. As a controversial president of the High Court’s Family Division, however, he has not always made friends. Spool back to 2010, when he was the judge in the divorce case between Earl Spencer and his second wife, Carolyn. He so enraged the Earl’s barrister, Sir Nicholas Mostyn, by refusing his application to have the case heard in private that Sir Nicholas named a litter of pigs on his farm thus: James, Munby, Self-regarding, Pompous, Publicity, Seeking and Pillock.

Sir James (right) is a fervent proponent of opening up the previously secret family courts to public view, and is indeed no stranger to publicity. He is in the news again with his proposal to allow divorcing couples to end their marriage in a simple online process. This has upset social conservatives, who believe that Sir James is further weakening the institution of marriage.

I have some experience in this matter, having been divorced twice. To my mind, any plan that obviates the need to hire m’learned friends, that bypasses the adversarial nature of a court hearing, and that may result in applicant and respondent managing to maintain a relationship based on more than money has to be applauded.

“Divorce requires time, thought and deliberate intent, not speed, efficiency and the throwaway ease of an online form,” says Harry Benson, founder of the Marriage Foundation. “It would be wrong to relegate divorce to little more than a tweet.”

He’s right, of course, that divorce is not to be undertaken lightly, but in my experience – and I have a number of friends who have been in the same unfortunate boat – it very rarely is. It is most commonly a last, desperate measure by two people who no longer want to live together in misery.

Very often, however, that’s where the trouble starts – and when the lawyers, who clearly have a vested interest in a protracted legal argument, get involved. It is a process from which no one (other than those lawyers) ends up winning, whatever the cash settlement.

Sir James, a prize turkey voting for Christmas, is unequivocal in his view that this has to change. He said that the digitisation of divorce (and probate) is “a vision not of some distant future but of what has to be”.

“When it has been done, we will at last have escaped from a court system ... moored in the world of the late Charles Dickens.”

Most divorces are uncontested, and neither party has to go to court. Still, they need to be ratified by a judge. Sir James has said that the new arrangements – which mean that a divorcing couple could have their entire proceedings conducted online with oversight by a judge, who will also be communicating electronically – would improve lives and save money.

Certainly, the present Dickensian system allows no room for the swirl of conflicting emotions that pervade divorce, and I believe that a more consensual approach is the way to ensure there is something that may be salvaged from the wreckage of a marriage. Sir James Munby is trying gallantly to make a silk purse out of a sow’s ear.

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