Two senior judges have recently pointed out how old fashioned the current divorce law. While it’s bang up to date in relation to family finances and children, bringing a marriage to an end is hopelessly old-fashioned.
Sir Nicholas Wall, President of the Family Division, gave a speech a few days ago in which he said that he could see no reason why no-fault divorce should not be possible. The following day, Lord Justice Thorpe, sitting in the Court of Appeal and hearing what appears to have been a very ill-considered appeal against the granting of a divorce, said “Our laws of divorce represent the social values of a bygone age.”
At the moment, if you want to get a divorce in England and Wales without waiting for at least 2 years after you separate (when you need your spouse’s agreement ) or for a period of 5 years (where that agreement is not forthcoming), the only way to get a divorce is to claim that the other side has committed adultery or behaved unreasonably.
Filing a divorce petition and ending up with a certificate of entitlement to a divorce that says that your spouse is at fault may give a petitioner a superficial sense that justice has been done. However, the reality is that it makes not one iota of difference to the really important issues of how a court will resolve disputes about their finances or their children. The reality is that, from a legal perspective, it makes no real difference who divorces who or why.
The trouble with the current divorce law is that it is was moulded in the 1960’s and its current form was put in place in 1973. If you’re old enough, cast your mind back to that era of 3 day weeks, energy crises (this week’s silly panic about petrol is much less serious). The world has changed beyond all recognition since then. There is little shame in divorce these days, so why does someone need to be at fault to get a divorce? Fault –based divorce belongs to the era of Ted Heath, post office telephones and Ford Cortinas. It has no place in the 21st century.
And yet we’re stuck with it. There was an abortive attempt by the Major government in 1996 to introduce it, but after backbench Tories and the Daily Mail had finished mauling it, the resulting mess was so hopeless that the Blair government decided not to bring the new law into force. They promised new laws and then quietly did nothing about it.
Why does it matter? It matters because wasting time and clients’ money on arguing who will divorce who and why is not in a family’s best interests. It encourages a belief that there should be winners and losers when compromise is the key to resolving the dispute. It further damages parents’ relationship when they need to be able to communicate, not just about sorting out their finances, but also about their children – they will probably have to deal with each other for years to come.
Ah, I hear you say – you lawyers just want more people to get divorced. This is all about earning more fees. No it isn’t. Lawyers don’t cause divorces – couples manage that all by themselves. There won’t be an increase in divorces.
The Daily Mail claimed that Sir Nicholas’ speech was another nail in the coffin of marriage. Rubbish. It won’t make divorce easier as it’s already easy, but it will make it far less unpleasant and help couples to reach agreement with less difficulty, something that may cause lawyers’ incomes to drop, if anything.
The government keeps telling us that we have a broken society which they want to mend. No fault divorce would help mend it. Yes, there would still be plenty of divorces, but at least there would be a greater chance that the divorcees are still able to work together to bring up their children.
Bygones should be bygones.