Helen Taylor explains her views on the benefits of the proposed ‘No-Fault’ divorce laws.
On September 7th, the Justice Secretary, David Gauke, announced that he is to begin a consultation to bring in “no-fault” divorce. Any adoption of a no-fault divorce regime would be a pivotal moment in English divorce law and would be a welcome improvement to the current law in this area. Three main arguments will be advanced in order to support this positive view of the proposed changes: 1) the current law is unsatisfactory; 2) the state has no legitimate interest in who should be able to divorce and 3) accusations that no fault divorce undermines marriage are misguided.
In his recent announcement, Mr Gauke explains that the present law on divorce is inadequate because it causes “unnecessary antagonism” between couples. This is correct. Currently, in order to get a divorce, a couple needs to satisfy the ground that there has been an “irretrievable breakdown” of the marriage by proving 1 of 5 facts. In brief, the strapline of each fact is as follows: adultery, unreasonable behaviour, desertion and separation for either 2 years or 5 years (depending on whether there is agreement between the parties). These facts are problematic for various reasons. Leaving aside the illogical internal technicalities contained in the relevant provisions of the Matrimonial Causes Act 1973, having 3 fault-based facts encourages further animosity between the divorcing couple because it forces the parties to allocate blame for the breakdown of the marriage in an overly-simplistic manner. Furthermore, the no-fault separation grounds can also be criticised – for example they are discriminatory because they favour those spouses that have the financial means to live elsewhere.
Secondly, the state has no justifiable interest in stopping couples from divorcing. For instance, the argument that the state should seek to uphold marriage for the sake of any children involved and to promote stability falls away when considering that any such stability has already been lost because, given that the couples has already made the decision to divorce, the marriage has self-evidently already broken down. This point is only heightened when considering that research suggests that the position of the law does not influence the decisions that are taken during a relationship. Moreover, the current law separates the question of whether the couple can divorce from the consequences of divorce (i.e. the question of who owns what and child care considerations) and so the issue of how easy it is for couples to divorce would not undermine the seriousness of the practical considerations that ensue following a divorce.
Finally, those who say that bringing in no-fault divorce undermines the institution of marriage are misguided. Surely forcing people to stay in a loveless marriage is what would truly undermine it! A case in point is Tini Owens whose appeal for divorce was (reluctantly) rejected by the Supreme Court last July because none of the facts had been satisfied. The reason that this was a unique case is because most divorces are undefended and procedural rules allow such divorces to be effectively rubber-stamped. However, given that Mrs Owens’ husband did defend the divorce, Mrs Owens will now be forced to remain married to him until the 5-year separation period is fulfilled. This seems overly oppressive and out of step with modern ideas that favour minimal state intervention. Going forward, it is therefore hoped that any change of the law would stop this situation from happening again.