Why the UK needs no-fault divorces by Sam Harman

Divorce|August 4th 2015

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.

Author: Stowe Family Law

Comments(12)

  1. Rachel says:

    Baroness Hale speaks with a consistent lack of clarity. She supports no-fault divorce, I presume as she recognises that human beings make mistakes and need a way to free themselves of the shackles of marriage when things go wrong, YET she makes such utterly outdated and unfair law as per McFarlane v McFarlane in which she decided that you must maintain a marital commitment for life via joint- lives maintenance. Here, the highest lady judge in the land decided that women can be maintained by a man for the rest of her life, with neither carrot not stick to earn money herself.

    She’s a very bright woman with a stellar career but has let the cause of equality for women down dreadfully. You can’t fight for equality on most fronts buts decide that where marital breakdown is concerned you want women to get money for nothing. It is sexist and outdated – when men attempt to get joint-lives maintenance from women, it makes the headlines – as this blog has reported only a few months ago.

    I agree with her on this occasion – let’s fight for no-fault divorce, but let’s have no-fault settlements to go with it. Let’s half the marital gains, provide generous child maintenance and restrict spousal maintenance to what is required to get the lesser earning spouse back to work. Let’s not have men paying women to conduct lives of leisure decades after divorce. It’s unfair, sexist and outdated,

  2. Elena says:

    Absolutely! A divorce for fault is a waste of time and money for everyone and especially when you have children as couples sometimes use the court “to do their dirty laundry” and “settle old scores”. At the end of the day, most judges will grant the decree and take the view that “there have been wrongs on both sides”

  3. Nordic says:

    Dear Sam,
    You could add another 20 European countries to your list, many of which introduced no-fault divorce decades ago. When my parents divorced in Denmark in 1970, it was on a no-fault basis. That we still start the divorce process here by requiring one party to blame the other is a measure of just how primitive, backwards and out-of-date family law is in this jurisdiction.

  4. John Macfie says:

    As a non-English lawyer, I find this post puzzling, as both England and Wales and Scotland provide for no-fault divorce based on the irretrievable breakdown of the marriage being demonstrated by a period of separation: In Scotland one year with consent or two years without suffices. The retention fault based grounds in E & W appears to the outsider to be at least partly due to the continued wish to make marital conduct a factor in deciding financial provision. This is I suggest a harmful tendency.

    In Scotland, while we too have retained adultery and unreasonable behaviour as grounds for divorce, they are comparatively little used in practice as marital conduct is irrelevant to a financial settlement except where:
    – there has been destruction, dissipation or alienation of property by either party; or
    – the conduct has adversely affected the financial resources which are relevant to the decision of the court on a claim for financial provision; or
    – where post-divorce maintenance is being considered and it would manifestly inequitable to leave the conduct out of account.

    This is part of the general policy of financial provision on divorce in Scotland, that the fruits of the marriage should be divided fairly between the parties beginning from an assumption that a fair division is an equal one. The result is, thankfully, that little blood or time is usually spent on finger-pointing and name calling in negotiations for settling financial provision

  5. JamesB says:

    In the Ricky Gervais film the invention of lying the marriage vows go as follows :

    Brad, do you agree to stay with Anna for as long as you want to
    and to protect your offspring for as long as you can?
    I do.
    And Anna, do you agree to stay with Brad for as long as you want to
    and to protect your offspring for as long as you can?
    I do.

    The point I make is that if you bring this in (as it should be, as the law is messed up currently on this in England and Wales) then you need to allow people to be free to write their own business arrangements, for that is what marriage will have become, and prenups. Or scrap UB and divorce on demand. After decades thinking on this I think perhaps move back to fault divorces as it is probably good to have some beliefs and morality. Like if you go to Catholic church there will be more people there usually than CofE.

    You should have mentioned in your post Sam that no fault divorce makes marriage vows worthless without enabling people to write their own including prenups which are valid in law, then it would have been a good post, instead of just going along with the status quo, but you are young and perhaps it is better to agree with superiors then argue with them and bite the hand that feeds. Still it doesn’t make them right and the society of divorces and less marriage they have created I don’t think is an improvement. I am a bit of a non conformist, but so was Jesus and Obama and others too large a list to go through who subsequently are found to be found right.
    The prevailing view is not always the right one. Like with Iraq. At the time I disagreed and was in the minority on that and was subsequently proved was not good thing to do. It is a bit sad hearing young people stick up for conforming when young people are being treated badly, e.g. employment and cost of property in this country.

  6. JamesB says:

    Things aren’t that bad though. Just a reminder to everyone, including young people, things are quite good overall really. I take back that last comment that young people shouldn’t be arguing for conformity, conforming isn’t a bad thing as a rule, just I think it is with Sam on this subject and isn’t really thought through as I have been forced to, since before he was born, about 1983 when my parents split. His parents are probably together also. So find it hard valuing his opinion on the matter. Still he starting an interesting discussion, although I doubt he will be back to discuss it as I don’t think he has enough experience to discuss beyond repeating what others have said which I have heard before. E.g. if one of the parties decides it is over it is, etc. indeed I read about half of his post for that reason. All the best to him though for bringing the subject up and starting the debate.

  7. JamesB says:

    Also, Asian families where the women tend not to walk out on marriage as they do in the west tend to stay together more and be stronger and happier and more financially secure with more support for each other within them.

  8. JamesB says:

    Marilyn, like the chap from Bristol from the Marriage foundation (perhaps John or David, can’t remember the name) have also never been divorced and are from families where it isn’t done so find it hard thinking of them as experts and their opinion as valid as those who have been.

  9. JamesB says:

    Harry Benson, not David or John.

  10. JamesB says:

    Harry, Marilyn, Sam. People who haven’t been divorced (either petitioner or respondent) don’t have as much authority as those who have to write on the subject. Those who haven’t have their parents divorce also have less authority to write on the subject than those who have. Unfortunately I have seen both. I am remarried now. There is also a lot of illness and disability in my family but we go on best we can and I do just sometimes glib or un though through comments get to me. Sam is in good company though Judges including Circuit court judges are big culprits also as they just spout the law, right or wrong black or white. Oftentimes people suffer in the name of justice although I accept better to have laws then not. Just hope for and try and get the right ones is an ongoing thing we must try for.

  11. JamesB says:

    p.s. Not after sympathy, just writing really. Perhaps was thinking of Robin Williams.

  12. JamesB says:

    Regards.

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