As no-fault divorce draws closer to it’s April 2022 introduction in England and Wales, Stowe Managing Partner Sebastian Burrows looks at the inherent connection between divorce and politics and how no-fault divorce reform is more likely to cause gentle liberation for unhappy couples, than careless abandon.
Why marriage matters
The planned introduction of the no-fault divorce law on 6 April 2022 has sparked controversy amongst Tory MPs, who have condemned the change in the law as ‘ill-timed’ because it will come as many marriages are under strain due to the Covid.
In the throws of the parliamentary debates before Royal Assent was granted, about a dozen MPs, including Philip Davies, John Hayes, Fiona Bruce, Edward Leigh and Desmond Swayne, voted against the Bill.
Conservative MPs were also quoted as having suggested that the proposed reform of divorce law risked “undermining the commitment of marriage” and blamed the government for essentially removing their ability to “discuss possible reconciliation”.
In a letter to the Telegraph newspaper, a group of Conservative MPs wrote, “This law sends a destabilising and deeply insensitive signal which will be amplified by these intensely troubled times, and it should be dropped now.”
A threat to stability?
Divorce is clearly incredibly political. We all knew that already though, didn’t we? But do we know why? The debate and resistance to reform also implies that Covid has muffled the public’s ability to be objective. Do those politicians understand the significance of the decision to end a marriage – the soul searching and pain that it brings so to so many people?
Stability in the home could be seen as the core of the nation. To legislate to threaten this might lead to an unstable population, and surely that must be guarded against. And what do lawyers know anyway? They’re out for themselves. ‘Divorce lawyers’ especially! Leeches, fat cats, vultures, the lot of them!
I have no intention for this piece to adopt any particular political flavour, but it is clear that the main objection to the introduction of no-fault divorce came, and no doubt still comes, from the Government benches.
Conservatism, of course, is synonymous with traditionalism. The state and the church are inherently linked in our jurisdiction, and perhaps, therefore, the objecting MPs should be lauded in seeking to protect marriage as the robust and firm commitment between individuals through thick and thin.
The no-fault divorce debate has been a very long-fought campaign by Resolution. It has an army of champions unified in their support for the reform that we will welcome this spring.
But to a large extent, the debate provides a window into the relationship between politics and the law more widely. One that is reflected in my own practice and that at my firm.
My colleagues and I are consulted by thousands of clients each year seeking assistance in the breakdown of their relationships. The first phone call from any client is invariably difficult for them, whatever their character.
Not once have I encountered or been aware of a potential client that could be labelled as thoughtless or hasty in their decision-making processes. Some are not ready, of course finding themselves on the receiving end of the experience.
The concerns of the predominantly Conservative MPs presumes that the divorcing public treats marriage lightly – like an unwanted and expensive gym membership to extricate oneself from. This, I would suggest, is the misunderstanding that exists.
As the debate rears its head again as we look to apply the new legislation from April, it is important to remember what the profession on the front-line experiences daily. Not couples suffering Covid cabin fever carelessly abandoning their socio-religious contract and obligation to their spouses. Rather humans seeking pragmatic support in the most personal of situations.
No-fault divorce – a new alternative
In the last few weeks of the current legislation, an applicant in a divorce must find fault in their spouse unless there has been two or more years of separation. From 6 April, when no-fault divorce is introduced, it will be necessary for one or both parties jointly to produce a statement of irretrievable breakdown.
Of course, many marriages involve huge levels of acrimony before a solicitor is retained, but with more than 50% of divorces being founded on unreasonable behaviour or adultery in the five years leading up to the Royal Assent of the no-fault divorce bill, many spouses had no alternative but to blame.
In the absence of an alternative, petrol has been poured on the fire in hundreds of thousands of divorces right at the start when the moral duty of my wing of the profession should be to dampen flames, not actively or inadvertently to fuel them.
No-fault divorce will provide unhappy couples with the opportunity to focus on solution and outcome from the outset rather than being distracted by anger when they need it least.
Freedom to divorce
In the Supreme Court case of Owens v Owens, credited with being the greatest nudge to the campaign to change the law, Mrs Owens had failed to demonstrate that her husband’s behaviour was unreasonable enough. I won’t rehearse the facts here. They are almost immaterial. The point is that she was trapped, needing to wait for five years to have passed to dissolve her broken marriage.
Forced marriage is abhorrent and thankfully has been criminalised. There is a parallel in preventing someone from leaving a marriage. That I do not think is in dispute. The MPs concern is that divorce would become too easy and that marriage would be trivialised as a result. The reality for family law practitioners is that this will not be the case.
I recently watched the film 127 Hours. The one with the canyoner trapped by a boulder who cuts his own arm off with a blunt penknife but only after 127 hours of trying everything else. He survived to have a happy life. There’s an analogy in most things. People do not embark on divorce on a whim and do not want more distress in the process.
London has famously earned the moniker of being the divorce capital of the world – where fairness prevails. Needs are paramount. Children are the central consideration. This, of course, is right. Divorce without apportioning blame does not, therefore, risk vulnerability for families. The law is there to provide protection and fair provision for them regardless of the route to divorce. The new legislation will bolster this reputation within a new and sympathetic framework.
For years we have been advising clients, almost like broken record players, (a) that the reason for the divorce is almost invariably ignored in financial matters, and (b) that defended divorces are as rare as hens’ teeth. The public has no need then for a legal avenue to have redundant obstacles.
It starts to look as though the principal concern of the MPs is to the Institution of Marriage itself being undermined. This leads to the other great need for reform – the legal protection for the unmarried. Momentum is building there too.
I suggest that with no-fault divorce, the dividing line comes from the question of whether an unhappy marriage is better than a divorce, even if it is started as humanely as possible. I question whether the conservatism of the MPs has been confused with traditionalism and an undisguised reluctance to change. But our new legislation is not just change. It is evolution, progress and fine-tuning of our society and must be embraced.
Whether divorce applications increase as the obstacles are removed will remain to be seen. I am very sceptical, but if they do, will it not represent the gentle liberation of the unhappy and an emergency exit for those previously terrified of knocking the hornet’s nest? I am sure that it will.
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Article previously published in The Barrister