At its annual conference a couple of days ago Resolution, the association of family lawyers, discussed the issue of no fault divorce. The introduction of no fault divorce has long been a policy of Resolution, so it came as no surprise to read that the conference was in support of it. However, following the debate on Twitter it seemed that there wasn’t a single member who was prepared to speak out against it.
Now, I wouldn’t say that all family lawyers are in support of the introduction of no fault divorce, but the conference does suggest that there is something approaching unanimity. Certainly, I can’t recall any family lawyer recently arguing in favour of the retention of our present fault-based system.
So, if family lawyers (including, incidentally, the judiciary) are virtually united in support of no fault divorce, then what do we have to do to get the message across so that this long-overdue change is finally put into effect?
The problem, as Sir Paul Coleridge pointed out at the conference, and as we have long known, is that no fault divorce is ‘high octane’, and it is therefore difficult to have an informed debate upon the subject. However, we divorce lawyers are obviously highly experienced in seeing the adverse effects of our fault-based system, so we are well placed to give an informed view, and thus we surely have a duty to press the case for reform.
The strange thing about all of this, of course, is that twenty years ago parliament did decide that it was time to bring in a no-fault divorce system. The argument, it seemed, had been won. Unfortunately, that turned out to be an illusion, and we now need to set out the case once more. However, the debate surrounding the Family Law Act 1996 and, on a smaller scale, the debate surrounding Richard Bacon MP’s current No Fault Divorce Bill, does at least give us an indication of what we are up against.
The primary objection to no fault divorce is that it makes divorce too easy, and will therefore lead to a significant increase in the number of divorces. But is this really the case? Whether or not fault has to be attributed, the dissolution of a marriage can hardly be considered a trivial thing: it is, quite literally, life-changing, with huge effects for the parties and, more importantly, for any dependent children. Will more people really decide that just because it is a bit easier they will embark upon that life-changing course? I think not.
The naysayers will point to the substantial increase in the divorce rate following the reforms of the 1960s. However, the situation then was quite different: those reforms released the pressure that was built up under the previous regime, which was highly restrictive, and which meant that many couples were forced to endure unhappy marriages that had often clearly broken down irretrievably. It was no wonder that the divorce rate increased. The situation now is quite different: the present law does not really prevent anyone from getting divorced, it just requires them to attribute blame, unless the parties have already been separated for two years.
Another objection to doing away with the attribution of blame for the breakdown of a marriage is that it will be unfair to the ‘innocent party’. To put it the other way, the party at fault will have ‘got away with it’. But how often is it the case that the breakdown of a marriage is solely the fault of one party? And even if it is, what is to be gained by attributing blame? The real thing that the innocent party has lost is their marriage, and the law cannot give that back to them.
And then we need to look at the positives that come with no fault divorce. The main one of course is that it will do away with the cause of considerable animosity – often where there was none previously – and thereby help to forge an atmosphere in which the parties can work together constructively to seek common ground on the important issues such as financial arrangements and, in particular, arrangements for children. It will also mean that the court will no longer need to consider whether the allegations contained in a petition are sufficient to prove irretrievable breakdown, incidentally doing away with regional variations in practice (I read recently that a certain divorce centre is being more strict with ‘weak’ behaviour petitions), and also of course doing away with the waste involved in contested divorce proceedings.
So the case for no fault divorce is clear, even with just the brief summary of the arguments set out above. We must press that case, and continue to press it at every opportunity. We must point out the benefits of reform, and counter the arguments against. This is not something that can be shelved for another twenty years – we must get it back on the political agenda, to reduce the burden on our over-stretched courts, for the benefit of many of those who suffer marriage breakdown, and, above all, for the welfare of their children.