Citizens of the US, Australia, Canada, Spain, Sweden and even Russia and China have the option of obtaining a divorce without needing to prove fault on the part of their spouse. Those of the UK do not. An attempt in 1996 to change this was largely quashed by the right wing media, and since then the status quo has invited condemnation from the Deputy President of the Supreme Court and two successive Presidents of the High Court Family Division. The practicalities of change will always pose difficulties – as Marilyn says, the devil is in the detail. But on principle the arguments for a no-fault divorce option are overwhelming, and those against virtually non-existent – and this is what a working legal system should hold as the criterion for change.
By far the greatest ethical obstacle to a no-fault divorce option is the possibility that a spouse who is objectively at fault for the breakdown of a marriage could obtain a divorce settlement that does not recognize this fact, and therefore may be unjust in its division of property. In reality, conduct is only a determining factor of financial settlement in extreme cases.
The instinctive response – a legal requirement of agreement by both spouses on the lack of fault – risks genuine no-fault cases being derailed if one party deliberately ‘vetoes’ a settlement they are unhappy with. However, this risk seems small when considering genuine cases of no-fault. And even if I’m wrong, such a risk must be compared to a status quo where every genuine no-fault case ends up going down that road.
The remaining opposition comes from traditionalists and religious groups, who claim no-fault divorce either downgrades the “protection of commitment” (the words of the Christian Legal Centre) or undermines the institution of marriage. Both of these arguments only expose the current legal situation as a plaster over a gaping wound. If divorce rates increase as a result of a no-fault option – a result there is no evidence to justify (US divorce rates have actually decreased since its introduction) – then this is not proof of a degradation of commitment but a recognition that a purely fault-based system extends many marriages beyond where meaningful commitment ended.
As for undermining marriage – in the cases this change would directly affect, the choice is between closing our eyes to the unquestionable fact that often a marriage can run its course without the need for fault, versus accepting this and thereby increasing the proportion of ongoing marriages that truly work. It is baffling how anyone can consider the latter option the one that undermines marriage.
The arguments in favour of a no-fault option are too numerous to list, but weigh the following crucial few against any remaining doubts from the above. Spouses who would use the no-fault option will tend to be those who currently must file for divorce on grounds of ‘unreasonable behaviour’. This often requires the embittering and unconstructive process of cataloguing every shortcoming of their partner, according to Baroness Hale, Deputy President of the Supreme Court. Lady Hale cites this bitterness as a chief factor behind her support of a no-fault option.
She also points out that such a change would ease the burden on the family judicial system, particularly by making some divorce settlements much quicker. That is not to say that a faster divorce is always preferable – indeed Lady Hale herself advocates a one-year period of reflection before a no-fault divorce would be final. But a no-fault petition is highly and by far the most likely grounds for divorce to indicate a genuine and calculated decision that the marriage is irretrievable. A means by which people who have made that decision can move on with their lives with reasonable swiftness is direly needed.
There is a societal cost at stake too. As Sir James Munby, President of the High Court Family Division, recognises, the introduction of a no-fault option would reflect society’s progression from seeing divorce as shameful, and inherently a failure – an outdated view which the status quo, by requiring proof of fault, seems to implicitly endorse. It is arguably the greatest challenge for family law, but also its greatest responsibility, to emulate the changing reality of families in society. The introduction of a no-fault divorce option is unquestionable in this pursuit.
Sam Harman is currently a Researcher for Stowe Family Law. He also attends Christ Church, Oxford where he is reading Philosophy, Politics and Economics and writes for The Oxford Student newspaper.