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Is no-fault divorce a “marriage wrecker’s charter”?

Please note that this is not the latest blog post on no-fault divorce. This can be viewed here. You can also access an update on the progress of the Divorce, Dissolution and Separation Bill here.  

A story on one of the major family law news sites last week quoted the charity the Christian Institute as saying that the government’s “approach to no-fault divorce is a marriage-wreckers [sic] charter”. I don’t know how old this is – the quote comes from an undated article on the Institute’s website which told us that:

“Institute Director Colin Hart has said, “We are already seeing a deeply worrying chift [sic] in young people’s attitudes , away from Christian marriage and lifelong committment [sic] to your husband or wife. Forty-two percent of marriages already end in divorce but the Government id [sic] carrying on as it it [sic] wants it to be 100 per cent. Its approach to no-fault divorce is a marriage-wreckers [sic] charter.”

Leaving aside the site’s need for better proofreading, I should mention that Mr Hart has previous for this particular expression. Back in 2013, under his then guise of campaign director of the Coalition for Marriage, he said of the same-sex marriage Bill: “This Bill is no longer about redefining marriage, it’s now about wrecking marriage.” To press the point, he said that then Prime Minister David “Cameron once said he’s a ‘marriage man’. No, he’s a marriage wrecker.”

Of course the institution of marriage was not in the event damaged by the introduction of same-sex marriage in 2014. Quite the contrary, in fact – the most recent marriage statistics, for 2016, show that in that year there were over 7,000 marriages between same-sex couples. But does Mr Hart’s latest prediction of doom stand a better chance of having some merit?

The Institute explains its problem with the reform in the same article. It says it believes that the law “already allows far too many divorces”, and is worried that no-fault divorce “will allow someone to simply walk away from a marriage without having to give a reason and without their spouse being able to contest.”

With respect, I think there is a fundamental misunderstanding here as to the function of the law. It is not the law’s function to keep a marriage going. In fact, that is beyond the power of the law, as an unhappy marriage in which at least one of the parties wants out is surely no marriage at all. The law can prevent or delay the legal process of dissolving the marriage, but it can’t repair an unhappy marriage. By the time the law gets involved, the marriage is almost certainly long-since over.

I’m sure the Institute would argue that an ‘easy’ divorce law would loosen the marriage knot, by indicating that a marriage can be exited at any time, without the need to put any effort into it. But if parties enter into marriage with that thought in mind, then why bother at all? The reality is that people don’t usually enter marriage lightly. They genuinely do believe at that point that they are making a lifetime commitment. They won’t therefore jump out as soon as the marriage hits the first bump in the road. They will usually make an effort to work things out, and will only decide upon divorce as a last resort. As I have said here many times, my experience of practising as a divorce lawyer for about a quarter of a century indicated that people do not take divorce proceedings lightly.

The Institute would probably also argue that making the divorce process more difficult, or at least slowing it down, would encourage efforts to repair the marriage and seek a reconciliation. But again, experience shows that it is vanishingly rare for a marriage to be repaired after divorce proceedings have commenced. I don’t recall it ever happening with any of the hundreds of divorces I dealt with when I was practising (although on at least one occasion the parties remarried after the divorce!). As I said, people don’t start divorce proceedings lightly – the marriage is already over. The opportunity to reconcile has already passed. Making the divorce more difficult, or slowing it down just means that the parties have to wait longer to move on with their lives.

No, no-fault divorce is not a marriage wrecker. It has no effect whatsoever upon marriages that are capable of flourishing. In fact, it is nothing to do with making it easier to end a marriage (although in some cases it will mean unhappy marriages can be ended without having to wait for years to pass). It is to do in particular with making the divorce process less antagonistic, thereby encouraging couples to resolve their issues, particularly regarding any children, more amicably.

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, with his content now supporting our divorce lawyers and child custody lawyers

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  1. JamesB says:

    Lawyers go on about amicable divorces. They know it is not like that, at least rarely is. They perpetuate the myth as they want to make more fees from divorce. To help them they should concentrate on trying to get people married and divorced with pre nups rather than pushing the existing bad law. This man doesn’t address the elephant in the room. The Ancillary relief MCA 1973 financial remedies on divorce law. Which is very bad. Arguing over deckchairs on the Titanic is the arguing over the (mostly lies) divorce petitions. Most divorces (over 99.99%) couldn’t care less, you are missing (deliberately and for no discernable reason) the main issue, that people don’t like or think lawyers help in contested financial or child contact cases.

  2. JamesB says:

    I can see why lawyers become politicians. They dont care about medium or long term welfare of society. In the short term you might get more money through increased divorces with no fault divorce, however, in the long run it kills it by making it too risky an endeavour. Still lawyers may have made money in the short term by then.

    A better argument is to try and get proper consent and marriage vows like they do in France. Stabilise the number of marriages that way, and make more money in the long term (rather than short term) through pre nups.

    Giving people an eject spouse button is kind of the reason people aren’t putting their life at risk on the whim of someone else.

    Are divorce settlements one-sided? Yes they are, who gets the kids in limited assets cases cleans up, hense decline in marriage.

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