‘No fault divorce’ briefing paper published

Divorce|October 1st 2016

The House of Commons has published a briefing paper which explains the arguments for and against ‘no fault divorce’.

It was written by a researcher at the Commons Library, a government information service that provides impartial analysis to Members of Parliament.

The paper included information about divorce law in England and Wales. Author Catherine Fairbairn explained that the only way to be granted one is to demonstrate that a marriage has irretrievably broken down. Legally, a couple must establish this irretrievable breakdown one of five ways: adultery, unreasonable behaviour, desertion, separation of two years with both parties’ consent and separation of five years without consent. Three of these ways are explicitly fault based.

However, there have been many attempts to introduce no fault divorce. The paper details the inclusion of the idea in the Family Law Act 1996. This was deemed “unworkable” by the government at the time and the provisions were soon eliminated.

Advocates of no fault divorce legislation include senior members of the judiciary, according to the paper. President of the Family Division Sir James Munby and his predecessor Sir Nicholas Wall both gave speeches in the last decade during which they indicated their support. Family law organisation Resolution and the governmental Family Mediation Taskforce have also called for such an amendment to the law.

Arguments against creating no fault divorce were also explained. These included Conservative MP Sir Edward Leigh’s claim that enacting it would lead to an increase in the divorce rate. Leigh suggested that such a law would eventually result in “more disadvantaged children”, women working longer hours and a “wide variety of [other] social problems”.

Last year Richard Bacon, another Tory MP, introduced a Ten Minute Bill which would create no fault divorce but it did not go any further than its first reading in the House of Commons.

Download the full briefing paper from the Commons Library page here.

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  1. Nick Langford says:

    It is good to see that the briefing document includes some of the arguments in favour of fault-based divorce; Wall had said that there were no such arguments. One argument is that where couples cannot use fault-based divorce, one will still seek to blame the other for the breakdown of the relationship and extend the dispute into the children or AR proceedings. Munby’s move to make divorce merely an administrative process surely trivialises divorce and thereby trivialises marriage (as Chesterton foresaw).
    One option is the Scots solution, in which the waiting periods for separation are reduced to 1 year with consent and 2 without. This results in 94% of divorces taking place without fault (2013/14), This is much simpler than Bacon’s proposal.
    It isn’t no-fault divorce that drives the increase in divorce so much as the expectation of child custody (Brinig and Allen). The increases since the sixties are predominantly petitions from wives which outnumber those from husbands 2 to 1 (and about 3 to 1 where there are children).
    The best way to reduce the incidence of divorce, therefore, may be to level the playing field, and ensure that divorce does not advantage one spouse over the other.

  2. JamesB says:

    The 3 to 1 figure is interesting with children. Sadly, I suppose as they feel they have everything to gain.

    I did talk with a 7th Adventist minister who said his community are no longer buying houses as the women were divorcing their partners for them. When they rented they stayed together longer.

    Also, re It isn’t no-fault divorce that drives the increase in divorce so much as the expectation of child custody, abso bleedin lutely. Move to shared care 50 50 and the number of divorces will reduce.

    Anecdotally I find divorced women with children very hard to live with and think my children do also. There is something about the way that they treated the father that I find rather unpalatable.

  3. JamesB says:

    I pretty much agree with Nick Langford and also think what Leigh said was missing the point in an unhealthy way, as someone on the receiving end of a BS UB petition, that is not the way the law should work.

    Re people divorcing against their own and their children’s interests? Well, I agree with Nick that the grass should not look so green on the other side by the introduction of shared care and pre nups meaning that the sword of Damacles isn’t hanging over so many marriages and causing divorce as I felt it was with my first one. Bring in no fault divorce and stop the constant stitch ups.

  4. JamesB says:

    Bring in no fault divorce and stop the constant stitch-ups please by introducing pre nups on Ancillary Relief and child contact.

    Re trivialising marriage, we are there already, I agree it needs to be more attractive, for my children as the current law in this space is a sick joke and totally anachronistic and driving a wedge between men and women and making them live apart and driving up the cost of housing and making more and more people live alone in flats without trusting people and the break up of society and the take over of the country by the EU and other Countries and the ascension of the Church of Rome and the disintegration of the CofE and the Country.

    On the point from Leigh, yes, there are results that happen and unintended ones and its good to see politicians finally thinking like that rather than the do good messes they make with such laws and the csa in the first place.

  5. Andrrw says:

    Prenups on money, yes; on child contact, no.

    • JamesB says:

      Pre-nups on money, sm and cm, perhaps not on child contact, enough space and common ground for an agreement there with between you and me Andrew. If not, then, prenups on money and child contact assumption 50:50, if not, then I go with pre nups on money and contact and cm and sm.

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