So what about the arguments against no-fault divorce?

Divorce|September 18th 2018

When I wrote my post that appeared here yesterday I gave it the title “What’s not to like about the no-fault divorce consultation?”

This was purposely intended to have two meanings, both for and against the Government’s proposals to reform divorce. However, I was only looking at the proposals, rather than any general opposition to the reform. For the sake of balance, I thought I should do a follow-up post looking at a couple of the arguments raised by those who oppose the introduction of no-fault divorce in any form.

It has not actually been that easy to find any such arguments being put forward in response to the publication of the consultation, as most news stories I have seen or read do not mention any. Perhaps that is because there is general agreement with the reform, I don’t know. Whatever, Twitter can always be relied upon for a good argument, and I have therefore turned to it to find a couple.

The primary argument is that no-fault divorce will devalue marriage by making divorce too easy. This tweet I found the other day is typical:

“Marriages up and down the country will be discarded like a shirt or pair of shoes you don’t want.”

Opponents will point to the reforms of the 1960s, that made divorce considerably easier, and that resulted in a huge increase in the divorce rate. But the present situation is entirely different. The present law, unlike the law prior to those reforms, does not prevent huge numbers of people from getting divorced. And no-fault divorce will not actually make things easier in the sense of enabling large numbers to get divorced when they could not under the present system. The case of Mrs Owens was exceptional. No-fault divorce is primarily about making divorce less confrontational, and therefore less painful.

As I have often said, my experience of a quarter of a century practising family law is that people do not take the decision to divorce lightly. They only do it after long, hard and careful consideration. The introduction of no-fault divorce will not affect their decision making. After it is introduced hardly anyone will decide to divorce who would not have done already, simply because of the law change.

Contrary to what some would have you believe, it was never the intention of those in favour of reform to increase the divorce rate. In fact, research indicates that this hasn’t happened in other countries where no-fault divorce has been introduced.

And the knowledge that the attribution of fault for marriage breakdown will not be required will not devalue marriage in any way. The Government is specifically proposing that the one ground for divorce, that the marriage has irretrievably broken down, will be retained. So there is actually going to be no change there. The ‘status’ of marriage will remain the same.

The biggest Twitter argument on the subject that I have found began with a tweet from Sir Edward Leigh MP.

He said:

“Evidence from social researchers shows that “no-fault” divorce will lead to mothers working longer and poorer educational outcomes for children. Knock-on effect is increased burden on the taxpayer to solve rather than prevent social breakdown. Totally counter to Conservative policy.”

This is quite a claim. Unfortunately, as far as I can see Sir Edward has not explained where this evidence is, despite being pressed to do so. In fact, as one responder pointed out, the evidence from known research actually indicates that the requirement to prove fault creates harm and doesn’t protect marriage. I wrote here about that research last October, in this post.

As for Sir Edward’s last point, it is, of course, the policy of a Conservative government, as another irate tweeter pointed out:

“this so-called Conservative government might as well abolish marriage”

No-fault divorce is the policy of a Conservative government, just as it was back in 1996 when the introduction of no-fault divorce was last attempted. No-fault divorce is not a party-political thing. Its proponents come from all shades of the political spectrum.

There is much else of interest in the responses to Sir Edward’s tweet, the thread is almost like a summary of the counter-arguments. If you are interested, you can find the tweet here.

OK, I realise that this post has done no more than scratch the surface of the arguments against no-fault divorce, but to do those arguments justice would take a post many times the length of this one.

I will, therefore, end by saying that if you are against no-fault divorce then you also have a say. The consultation is not just for those in favour. If you want to respond to the consultation please do so, here. The consultation closes on the 10th of December, and so responses must be in by then.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(3)

  1. Stitchedup says:

    I given arguments against the practicality no fault divorce in a previous article but they weren’t posted. Do you really want to hear the arguments against the reality of no fault divorce? The reality is there will never be large scale no fault divorce and separation as long as women have so much to gain by attributing blame. Throw in a domestic abuse allegation and the woman takes all!

    • Kate Nestor says:

      Apologies but when we moved our blog last week and launched the new design we lost a number of comments that unfortunately we cannot get back. Every debate has two sides and we want to hear them. Kind regards,

  2. Spiro Ozer says:

    Mine have been lost too although submitted *after* the redesign.

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