Blame game: no-fault divorce

You are probably aware of recent discussions about how easy it should be to get a divorce and what, if anything, should be done to protect those spouses dead set against splitting up. Will any relaxation of requirements open the floodgates and encourage divorces at a time when marriage is widely perceived to be creaking as an institution?

Fault lines

The current legislation was drafted 40 years ago and sought to allow a way out for those living in intolerable conditions or to force a long ‘cooling-off’ period ?of separation.

The court will accept that a marriage has irretrievably broken down if a spouse can prove one of five facts. Three – adultery, unreasonable behaviour and desertion – are based on fault. Two – separation for two years with consent and five years without – involve no fault, merely a period of living apart.

About 35 per cent of petitioners use separation and, provided the parties are prepared to wait sufficiently long, this is a perfectly reasonable method.

However, for those who wish to divorce more quickly, two years is a long time to wait; and when only one wishes to do so, five years seems excessive.

As a result, the most popular method of divorce (48 per cent in England and Wales during 2010) ?is to allege unreasonable behaviour. ?It is much quicker. It is possible to issue at any time, provided one year ?of marriage has elapsed. Solicitors ?are encouraged to draft petitions with only brief particulars, and the judge is not required to find that all the allegations of unreasonable behaviour are true.

The judiciary is all too aware that petitioners cite unreasonable behaviour to obtain a quicker divorce and will often discourage any attempt to contest. Respondents rarely admit the allegations made against them, but simply accept that the marriage has broken down.

Defended divorces are extremely few and far between, but arise when a respondent refuses to accept the allegations or that the marriage is finished. In just such a case reported recently (see box), Mr and Mrs Rae had Lord Justice Thorpe lamenting that the court was raking over the minutiae of a 20-year marriage simply because the law demanded that fault had to be shown. He is quoted as saying that “our laws of divorce represent the social values of a bygone age”.

Although he felt sadness at Mrs Rae’s “complete inability to accept what had happened to her”, his finding that the marriage had broken down was the “only realistic outcome”.

Mr Rae was reduced to making allegations about his wife removing a TV aerial, taking the fuse out of a washing machine to prevent him using it and throwing away food he intended to use in his packed lunch. She maintained that his misuse of the washing machine and devotion to intensively farmed meat were the only disagreements they had had in 20 years of marriage. Obviously her husband disagreed.

The real point is that the judge really felt he had no alternative but to decide in the petitioner’s favour because he, the petitioner, believed the marriage was at an end.

Social status

Sir Nicholas Wall, president of the Family Division and head of family justice for England and Wales, recently addressed the Resolution conference and was supportive of its call for the introduction of no-fault divorce. He said: “My position is very simple. I am a strong believer in marriage but I see no good arguments against no-fault divorce.

“At the moment, as it seems to me, we have a system – so far as divorce itself is concerned – which is in fact administrative, but which masquerades as judicial... In the 19th century and for much of the 20th, divorce was a matter of social status – it mattered whether you were divorced or not and, if you were, it was important to demonstrate that you were the ‘innocent’ party. All that, I think, has gone.”

I am sure the vast majority of family lawyers would agree with this. It is unfortunate for those, like Mrs Rae, who wish to remain married despite their spouse’s wish to divorce, as it is almost impossible to successfully defend a behaviour petition. If one spouse feels strongly enough to commence divorce proceedings, the court tends to take this as evidence enough that there is no life left in the marriage and grant a divorce.

Why not, then, make the process easier and grant a divorce if one party clearly wants it, without the need for allegations which neither party wishes to make or have made against them?

A number of years ago, attempts were made to change the divorce regime. Lord MacKay wished to allow ‘no-fault divorces’ to reduce the divorce rate by setting up information meetings designed to “save the saveable marriages” by promoting mediation and counselling.

Unfortunately, the pilots that were rolled out in 1997 and 1999 showed that mediation did no such thing. In fact, many who attended the meetings found their desire to seek legal advice hardened. The Daily Mail, among others in the press, waged a campaign to prevent such easy access to divorce. It memorably suggested that the legislation would have reduced marriage to “something of less value than a television licence”.

It proposed that couples should be encouraged to work out their differences for their own good and for the benefit of their children. There was wide-scale alarm among some that making divorce easier would result in a rush to the divorce courts and undermine marriage at a time when cohabitation rates were rising and marriage rates falling.

Compromises in the legislation including an extension of the cooling-off period from one year to 18 months where children were involved lost the bill support and the proposals were finally scrapped in 2001. The politicians have not had the stomach for another fight since.

Lord Irving explained that one of the key components of the new legislation – information meetings – “were not effective in helping most people to save their marriages, as they came too late... the evidence showed that the meetings tended to incline those who were uncertain about their marriage towards divorce”.

The pro-marriage movement has recently come back on the radar with the establishment in May of the Marriage Foundation (see box).

Personal experience

If couples want to pursue marriage guidance or talk to a counsellor, there are facilities up and down the country that allow them to do so. If both feel that voluntary attendance may help, an appointment might be a sensible way forward, but it is not for everyone.

Some psychologists believe that discussions and ‘reconciliations’ can do actual harm. Unless both partners sincerely want to repair their relationship, couples often emerge from the process angrier than when they began. Many counsellors discourage talks to ‘save the marriage’ where it is perfectly plain that one party is committed to divorce.

In my experience, the vast majority of those coming for initial advice have a clear view as to whether they wish to separate or divorce. Many have committed to months of soul searching before they arrive and they do not need me (or anybody else) to try to dissuade them of their decision or ask them to ?go back to their spouse and work at things. A divorce may not immediately make things less painful but it is often seen as inevitable and a necessity for long-term happiness.

The existing system should be simplified. We allow adults to get married whether or not they have carefully thought through their decision and there is no reason in principle why we should not allow them the same autonomy if they wish to divorce.

There is no need in this day and age to suggest that one party or another is ?to blame for the divorce. If one person ?in a marriage feels that the marriage ?has broken down, it is reasonable to grant a divorce simply on the basis of their belief – it does after all take two people to want to work at it. Allegations against one another have no place in this and merely raise the temperature and cause distress.

No-fault divorce works in other jurisdictions. For example, in Scotland it has been possible since 2006 to obtain a divorce after living apart for a period of a year. Canada and many of the American states have similar rules.

It is necessary to include within any process protection for both spouses in relation to financial matters, and children must be responsibly provided for. However, the basis of the divorce itself should be much quicker, cheaper and more straightforward.

As for those who say that this will mean an increase in divorces, this is not the experience of other countries. In Scotland there was an immediate spike in divorce rates following the change in the law, mainly as a result of the fact that divorces were able to go through sooner as a result. Now that the effect of the change has washed through, the data actually shows a slight decline in divorce rates in 2009 to 2010.

Simplifying the process need not have any detrimental impact upon the importance of marriage. It would bring about a more mature and straightforward process which can benefit everyone.

• support more people accessing high-quality relationship support at the outset and their website will signpost existing services to allow couples to find help;
• challenge the view that marriage is relatively unimportant and that cohabitation is effectively the same thing. Short, focused research will be released to the media to promote the cause;
• target young people to formulate attitudes early in life. The foundation will therefore invest in social media, viral videos, sessional youth work and mentoring programmes to promote marriage.

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