Should a respondent have a right to defend divorce proceedings?

Image: Public Domain, via Piqsels

It is axiomatic that anyone against whom legal proceedings have been brought has a right to defend those proceedings. However, from the 6th of April (assuming the Divorce, Dissolution and Separation Act keeps to its expected timetable) respondents to divorce proceedings will have no such right.

Under the no-fault divorce system that the Act will introduce, irretrievable breakdown of the marriage will remain the ground for divorce, but a statement from the applicant that the marriage has broken down irretrievably will suffice as proof of that fact. Neither the respondent nor indeed the court will be able to question it. The respondent will only be able to oppose the divorce on very limited grounds, disputing the validity or subsistence of the marriage, or the jurisdiction of the court to entertain the proceedings.

Now, my expertise on other areas of law may be somewhat limited, but I am not aware of any other type of legal proceedings that do not offer the respondent or defendant the opportunity to defend the proceedings. And I just find myself feeling a little uneasy that respondents to divorce proceedings will be denied that right.

It's not that I ever liked the idea of defended divorce proceedings. I agree that they are almost always utterly futile. It just seems wrong that someone can have a legal process taken against them without having any say in the matter. It is surely contrary to the concept of natural justice, which is so central to any fair legal system.

I can also see the reasoning behind the new system. When there is no need to prove one of the 'five facts', then what is there to argue about?

Well, you can still argue about whether the marriage has, in fact, irretrievably broken down.

Again, I emphasise that I do not want to see this happening. It has always been obvious to me that it takes two to keep a marriage going, and if one party wants out then the marriage is over, no matter what the other party wants.

And marriage is of course a unique type of subject matter for legal proceedings (along with civil partnership). It is quite different from any other type of legal right that may be the subject of court proceedings. It cannot be quantified in the same way as, for example, the value of a personal injury claim. And nor can it be evaluated in terms of right and wrong, as with criminal proceedings (I suppose that there may be some who would argue this point!).

Perhaps an answer to the natural justice issue would be to make divorce a purely administrative process, as has been suggested in some quarters (albeit not necessarily for this reason). Such a process may follow certain rules, but so long as the rules have been correctly applied, there is no right to oppose.

But then marriage is a legal status. How can a legal status be removed without a legal procedure?

Anyway, those are my brief thoughts, admittedly poorly and hastily expressed. I'm sure a jurist with more than my very limited expertise could argue the matter far more eloquently, putting forward far more learned arguments, and in far greater detail. Perhaps they would also come up with a better answer to the question.

And just to confuse the reader I want to finish by saying that I am actually in favour of the abolition of the right to defend. As I said above, defending divorce proceedings is an exercise in futility. It's just that doing away with the right offends my lawyerly sensibilities.