Judges tend to sit on their hands about law reform, choosing to apply the rules rather than arguing about what those rules should be. Recently, however, Lord Wilson, one of two family law judges in the Supreme Court, called for a move to “no-fault” divorce. He was echoing the views of his recently deceased, highly respected colleague, Sir Nicholas Wall, and joining a chorus that has been building amongst family lawyers for years.
It is nearly four and a half decades since our divorce laws were last substantively changed. Those changes were themselves the result of a Royal Commission formed in the late 1950s and are very much a product of mid-twentieth century morality.
Though couples were, for the first time, allowed to divorce for reasons other than adultery, cruelty or desertion, the 1973 Act retained the need for “fault based” divorce. This means setting out why you want to bring your marriage to an end and blaming it all on your partner, arguing their behaviour makes it “unreasonable” to expect you to stay married to them, making the divorce a legal enquiry rather than an administrative process. There is simply no scope for a couple to say simply “This marriage has broken down”.
Instead of being able to end their marriage like the autonomous adults they are, petitioning spouses are forced to rake over their relationship to highlight their partner’s faults. To avoid the fate of Tini Owens, whose petition was rejected by the court for not being “strong” enough, spouses are often forced to make accusations that even they don’t really believe in.
This may not seem like a major issue, but after more than a decade at the top of family law, I have seen the chaos it creates. Once these allegations are made even an amicable divorce can become a combative process. Once branded the “guilty” party, the respondent can become defensive and vengeful. The petitioner can become convinced that they are blameless and act with impunity. However the psychodrama plays out, had it not been initiated by the court process, things might be a lot easier throughout.
The acrimony which comes from fault based divorce can turn straightforward cases into wars of attrition, consuming the families’ resources and unnecessary court time. For those with children it can create a lingering atmosphere of distrust and dislike that sullies later attempts to co-parent.
The current system is archaic and counter-productive. We do not ask the betrothed to justify why they should be a couple when the want to get married. There is no sense in forcing them to justify why they want to separate.
Keeping the system of fault based divorce does nothing to encourage marriage or to prevent separation. By the time a couple has come to filling out divorce papers, the relationship will not be saved by making the process more complex and acrimonious. All this does is force couples into unwelcome rounds of assigning blame, rather than focussing on pragmatic outcomes which lay friendly foundations for their future life.
Our society has accepted that families come in all shapes and societies. We are no longer bound by the moral judgments of the 1950s. Some marriages work, some do not. If we want to alter how that happens, the answer lies in supporting struggling couples with counselling and advice, not introducing pointless hurdles to the process.
In my time representing couples in their divorces, I have seen that no one leaves a marriage without giving it serious thought and consideration. Indeed, people more commonly rush into them. By the time someone has come to issue a petition, it has come at the end of serious thought and soul searching. Allowing them to proceed on a no-fault basis, allowing them to say nothing more than “this relationship has broken down irretrievably” would not weaken marriage, but would instead lift an unnecessary burden off the shoulders of those who are already suffering relationship ending.