Last year, Richard Bacon MP introduced a Bill to Parliament under the Ten Minute Rule that would have provided for the introduction of divorce without fault. The Bill did not get a second reading, but gave welcome oxygen to the campaign by our family lawyers’ association Resolution that the time has come to stop the mud-slinging inherent in our outdated divorce process. The House of Commons library has just published a very helpful briefing paper on the subject so that MPs who come to consider the issue again can be fully informed.

When we family lawyers talk about ‘no fault divorce’ we’re not talking about divorcing amicably as such, but about removing the legal need to prove that one person has specifically been at fault in the breakdown of the marriage. At the moment, unless both spouses agree to a divorce and are willing to wait two years to achieve it, one spouse has to formulate allegations of the other’s ‘unreasonable behaviour’, or prove that there has been adultery (usually by the other person’s admission). The legal framework for divorce is based on legislation drawn up in the late 1960’s and still reflects the moral climate of the lawmakers in that era. In contrast, the divorce process is now broadly administrative, and one that is intended to be online from next year. The incongruity is startling.

What Resolution would like to see, for example, is a system that allows either spouse or both spouses together to start a divorce on the basis that their marriage has irretrievably broken down. If they still feel the same six months later and confirm the intention to divorce, then the divorce is made final. There would be no need for any allegations. Richard Bacon MP’s bill would have just added to the current law an option for spouses to divorce quickly by signing a declaration of mutual agreement that the marriage had broken down – not removing fault, but offering the option of not using it.

The Commons research paper goes over the current basis for divorce in this country, and the provisions of the Matrimonial Causes Act 1973 that govern it, and then goes on to consider what happened last time Parliament considered a reform of the divorce laws. This happened twenty years ago, when socially conservative members of the executive who were primarily concerned with ‘saving saveable marriages’ made the no-fault divorce provisions so cumbersome and unwieldy that the scheme was eventually abandoned.

The most interesting part of the paper is Part III, which weighs some of the arguments for and against the introduction of no fault divorce.

Richard Bacon MP highlighted the contradiction inherent in current policy in his speech about his Bill. He said:

“Although the whole thrust of current policy is supposedly about taking disputes away from the courts and towards reconciliation, mediation and alternative dispute resolution, people seeking a divorce who wish to avoid apportioning blame often find themselves required by the law to follow a path they do not wish to take. In effect, they are required to throw mud at each other.”

The paper also quotes the President of the Family Division in the High Court (our ‘top judge’) Sir James Munby:

“The reality is that many divorces go through by consent in the sense that the parties have actually agreed the grounds of alleged unreasonable behaviour before the petition is issued. If they don’t want to do that and there’s been two years separation, then it goes through by consent so the reality is we have divorce by consent. Defended divorces, contested divorced are almost invisible. They hardly ever happen nowadays so in that sense, … all one’s doing is actually bringing a bit of intellectual honesty to the situation and getting rid of an unnecessary process which simply makes life more complicated…”

On the other side, the paper also looks at the objections stated by Sir Edward Leigh (Conservative) to Richard Bacon’s Bill. These were that the introduction of no-fault divorce would have significant impact on the divorce rate and therefore a demonstrable effect on society, and that divorce negatively affects the life chances of children. He said:

“A Bill to bring about no fault divorce would have implications throughout the country and I suspect that that is why successive Labour and Conservative Governments have, in the end, balked at it. Other developed countries have introduced it, so we are capable of assessing its likely impact. I accept that there can be no doubt that it will lead to a simpler, less traumatic, less costly way of dissolving marriages that have suffered irretrievable breakdown, but the evidence shows that it comes with further consequences. Do we want to see more disadvantaged children? Do we want to see women poorer? Do we want to see women working longer hours? Do we want to see the wide variety of social problems … deepen further in our society? The answer must surely be no.”

(One might consider that if the state were concerned about children being disadvantaged, and women poorer or working longer hours after divorce, it might find other ways to support families rather than recommending that they stay in unacceptable marriages.)

We want to see divorce being available without fault, because the need for one person to blame the other for a lost marriage is outdated, counterproductive and in many cases cruel. We hope this briefing paper gives our elected representatives pause for thought so that the next time they are called upon to consider the law of divorce they can take a brave step forward into a more civilized future for divorcing couples. If you’d like to make an appointment to see Tricia, Adam, Gail, Sue or Simon you can call us on 01223 443333.

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