I have written here on many occasions of my wish that our outdated fault-based divorce system be replaced with a modern no-fault system – at least for couples who have not been separated for two years. I am hardly alone amongst family lawyers in seeing this as an essential reform: the President of the Family Division is in favour while Resolution, the association of family lawyers, has long been calling for it. In fact, I know of very few family lawyers who are against it.
Last week the House of Commons Library published a briefing paper on the issue of no-fault divorce. Now, there is little or nothing in the paper that is new. The purpose of briefing papers, as the name implies, is to brief MPs on the subject, rather than put forward new ideas, but its publication is an opportunity to bring the issue back into the public eye and renew the case for no-fault divorce.
Having said that, I don’t propose to discuss the positive factors in favour of no-fault divorce here (such as reducing animosity and thereby increasing the chance of couples resolving issues between themselves by agreement). Instead I want to look rather at the alleged ‘negative’ factors, i.e. the arguments put forward against the introduction of no-fault divorce. The briefing paper sets these out, and summarises the main ones thus:
“Arguments against the introduction of no fault divorce include that the institution of marriage should be supported; the risk of the divorce rate increasing if it is perceived to be easier to get a divorce; and the negative impact of family breakdown.”
Let’s look at each of those three arguments in turn.
That the institution of marriage should be supported: As recent figures have shown, more and more couples are choosing to cohabit rather than marry. This is their choice, made freely and irrespective of the law on divorce, which has essentially not changed for nearly fifty years. This is the reality, and no change in the law is likely to have much if any effect. We should therefore support cohabiting couples, just as we support married couples. The main argument in favour of marriage is that it is more stable, and therefore more beneficial to dependent children, but the stability argument has long-since been debunked by the truth that the couples who choose to marry are the ones who are more likely to stay together (that is not, of course, the same as saying that if more couples choose to marry, more will stay together).
The risk of the divorce rate increasing: This is really just another part of the same argument about supporting marriage. What it ignores is the reality of modern thinking on marriage. Whilst I’m sure that when most couples marry they consciously expect the marriage to be for life, subconsciously they know that it need not be: if things don’t turn out as they hope, then they can bail out. This, as I say, is the reality, and why the choice to bring a modern marriage to an end is so much easier. There is no point in legislation trying to alter this reality by making divorce difficult. To put it another way, the bird has already flown – the divorce rate took off after the divorce reforms of the 1960s, and doing away with fault-based divorce now will do little if anything to increase the rate of divorce further. To put it yet another way, few if any spouses are stopped from getting a divorce now simply because they have to blame the other party for the breakdown of the marriage.
The negative impact of family breakdown: This is really a non-point, for the simple reason that when one party issues divorce proceedings, the family has already broken down. All of my experience practising as a family lawyer indicated quite clearly that it is a myth that people take the decision to issue divorce proceedings lightly. They do not – pretty well without exception my clients had only decided to instruct me to issue divorce proceedings after long and careful thought, when all other avenues had failed. I don’t recall many at all responding positively to my suggestion that they might consider marriage guidance. People just don’t go to a lawyer to commence divorce proceedings on a whim. There is also the other point here: it can be just as negative, especially for the children, to force an unhappy couple to remain together by making divorce difficult.
In short, the arguments against no-fault divorce simply don’t add up. There are only positives when it comes to no-fault divorce, and therefore no reason why we should not get on with this long-needed reform.