I and many other family lawyers have long argued for the introduction of no-fault divorce. I have put the argument here on a number of occasions, such as in this post last April. However, the best advert I have seen recently for no-fault divorce came in a judgment that was published last week. The judgment was a clear reminder of just why this is such an important issue, and why we must consign the idea of fault to history.
The only good thing to say about the judgment is that is thankfully an extremely rare bird: a reported trial of a divorce suit (it also dealt with a financial remedies claim). In other words, the judgment includes the judge’s decision upon the merits of a contested divorce petition and also a cross-petition by the respondent.
Sadly, in coming to his decision the judge had to deal with matters of the most personal and private nature. These were matters so personal that they really should not have been the business of anyone other than the couple concerned – unless they involved a criminal offence or conduct so bad they might have some bearing upon any financial settlement. That, in 2016, the law of divorce still makes such matters the concern of the courts is, frankly, an appalling intrusion into the privacy of two people.
It is also surely a nonsense that, in these days of such pressure on the courts, that judges are still being asked to spend their precious time determining issues that really have no place in a modern courtroom, subject to the exceptions I mentioned above. Judges, in short, have far better things to do with their time than trawling through such matters.
But it is not just a matter of the court’s time. Why should we force our judges into these voyeuristic exercises? I’m sure most judges, just like most right-thinking people generally, have no interest in delving into the most intimate details of people’s personal lives.
And the point is that they shouldn’t have to. With a no-fault divorce system it would not be necessary to make any judicial enquiry into what may or may not have gone on within a marriage. All that would be required is a simple statement from one party to the effect that the marriage had broken down. The court can then spend its time dealing with things that really matter, such as the arrangements for any childrenand financial matters.
And those other things bring me to my next point. Having to place the blame for the breakdown of the marriage upon the shoulders of one person, legally confirmed by the court, inevitably of course leads to heightened emotions and an increased level of ill-feeing between the parties. This, in turn, makes it far more likely that there will be a dispute between the parties about those other things, and that the chances of them resolving issues by agreement will be severely diminished. This will increase the time, stress and cost of the divorce, and will further eat into those precious judicial resources.
Reading that judgment the other day was like stepping back in time. It reminded me, in particular, of reading divorce cases from the Victorian era, when the courts regularly held an investigation into the very personal lives of one or both of the parties – in order, for example to prove an allegation of adultery. Such things are an anachronism having, as I’ve said, no place in a modern courtroom. They are, in short, an insult to the parties, and to the courts.
The reasons for the breakdown of a marriage are no one’s business but that of the couple themselves, and the sooner the law is changed to acknowledge this the better.
The case of H v H (2016) EWFC B81 can be read here.