Another vote for no-fault divorce

Divorce|April 13th 2015

The recent call by Baroness Hale for the introduction of no-fault divorce was welcomed by many family lawyers, including in particular one Marilyn Stowe (albeit with some reservations). I thought I would add my (admittedly rather less illustrious) voice to theirs.

OK, I admit I am probably not about to say anything that I have not already said here but, like Baroness Hale, I think these things need repeating. As we will see, the need for no-fault divorce has been recognised for years but has yet to be properly addressed. We must therefore continue to keep it on the agenda until it is.

The arguments in favour of no-fault divorce are fairly obvious and straightforward. Fault-based divorce adds unnecessarily to the animosity which can accompany the process by requiring one party to blame the other for the breakdown of the marriage – unless they have been separated for two years and the other party consents to a divorce. Blaming one party is also usually quite wrong – in most marriage breakdowns there is some measure of ‘fault’ on the part of both parties. Further to that, the reasons for the failure of a marriage can be complex, and attributing fault at all may be an artificial simplification. It is also futile, making no difference to the ultimate outcome.

From a practical point of view the requirement to attribute fault can often lead to contrived unreasonable behaviour petitions, full of feeble allegations. As the other party also wants a divorce, they do not defend the allegations. What is the judge to do in such a situation? As there is obviously no point in keeping the marriage going in such circumstances, they let the petition through. But this brings the law into disrepute, as it is obviously not how it was originally intended to operate.

There are various arguments against the introduction of no-fault divorce, but two in particular stand out.

The first argument is that divorce should be difficult, and that making it easier weakens the institution of marriage. However, this assumes that the law can have an effect upon the reality of the situation. Of course, it cannot – it takes two to keep a marriage going and if one party says that the marriage is over, then it’s over. The law can’t change that fact.

The other argument is that marriage is a contract. Under the law, you can’t withdraw from a contract without consequences, unless you have good reason to do so. I’m afraid I’ve never accepted the argument that marriage is a legal contract like any other. It’s a long time since I studied contract law, but as I recall, legal contracts require one party to make an offer and the other party to accept that offer. They also require some form of consideration to pass between the parties. To apply such principles to the institution of marriage is absurd. If marriage is a contract, it is a contract quite unlike any other, and therefore the usual principles regarding the ending of the contract do not apply.

Whatever your thoughts about these arguments, the simple fact of the matter is that fault-based divorce no longer has a place in modern society. This was even recognised by the government as long ago as the 1990s, but they made such a hash of the Family Law Act 1996 that it was abandoned. Quite why, nearly twenty years later, we are still waiting for a proper system of no-fault divorce, I’m not sure.

Reform of divorce law is, of course, a matter for government, and it is quite right that it should be brought up now as those vying to lead this country after the forthcoming election are setting out their policies. Divorce reform may not be top of their list of priorities, but I hope that the new government, of whatever colour(s), will enact proper reform, finally bringing our divorce laws into line with the modern world.

Marilyn Stowe’s thoughts upon Baroness Hale’s comments can be found here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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