Faulty divorce

A landmark report has confirmed that the current divorce laws do nothing to save marriage and actually just encourage people to lie or exaggerate events in order to obtain a divorce. The Nuffield Foundation report “Finding Fault?” led by Professor Liz Trinder of the University of Exeter has been damning in its criticism of current English divorce law.

There is currently only one ground for divorce; the court need not be satisfied that the marriage has irretrievably broken down. To do this the Petitioner has to allege one of five “Facts”:

  • Adultery
  • Behaviour (commonly referred to as unreasonable behaviour)
  • Desertion for 2 years
  • Separation for 2 years, with the Respondent’s consent to a divorce
  • Separation for 5 years

The first two Facts, Adultery and Behaviour are the only way that a couple can divorce without a lengthy period of separation beforehand.

Liz Trinder has been quoted as saying ‘This study shows that we already have something tantamount to immediate unilateral divorce “on demand”, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state. A clearer and more honest approach, that would also be fairer, more child-centred and cost-effective, would be to reform the law to remove fault entirely.”

There is no evidence from this study that the current law protects marriage, and there is strong support for divorce law reform amongst the senior judiciary and the legal profession. We recommend removal of fault so that divorce is based solely on the notification, and later confirmation, by one or both spouses that the marriage has broken down. This should be a purely administrative process with no requirement for judicial scrutiny – in the 21st century, the state cannot, and should not, seek to decide whether someone’s marriage has broken down.’

The arguments that are always used by those who are opposed to divorce reform is that no-fault divorce will undermine marriage by making divorce easier.

This ignores the reality that it is already easy to divorce; you just have to say something nasty about your spouse. People find it all too easy to be unpleasant about each other and make allegations when a marriage breaks down. All it does is add needless extra conflict to a divorce.

Where no-fact divorce has been introduced, there is no evidence to show that the divorce rate rises, apart from a small spike immediately afterwards caused by people waiting until the new law is introduced. Then it settles down.

But, opponents then say, surely one side has to be shown to be to blame so that their finances can be divided. No, it doesn’t. The fact cited in a divorce almost never makes the slightest difference to the financial outcome of a divorce.

Ah, it is then argued, it is only right and fair that the guilty party be found to be at fault. This view demonstrates an enormous lack of understanding of the law.

An allegation of adultery (which is admitted or proved) allows the Petitioner to satisfy the court that the marriage has irretrievably broken down. However, this does not mean that this is what caused the marriage to break down. It is just what allows the court to find that there is a justifiable reason to divorce. All that the Petitioner has to do is say that he or she finds the adultery intolerable and the divorce will be granted.

What many people don’t realise is that the adultery may have begun long after the couple separated and after they had both accepted that the marriage was definitely over. It didn’t cause the breakdown of the marriage, it is merely a symptom of the breakdown. Culpability had nothing to do with it.

There is a similar problem as regards behaviour divorces. After over twenty years of practising as a family solicitor, I can tell you that I could draft a behaviour divorce petition for any husband or the wife, regardless of the state of their marriage. No-one is perfect, everyone behaves badly sooner or later. Some marriages fail because of it, some don’t. The nature of the behaviour allegations need not be extreme. The reality is that a divorce petition does not give a balanced picture of the reasons behind the breakdown of the marriage. There is usually some fault on both sides (although I am not suggesting that fault is necessarily equally balanced), but the divorce petition doesn’t list allegations by both sides and then ask the court to decide who is more to blame.

As this point, opponents start to question solicitors’ motives and to claim that we just want more people to divorce because it means more money for us.

No again. Firstly, more people will not get divorced. They didn’t elsewhere in the world and there is no reason to believe that they will in England and Wales. Secondly, by reducing the potential for conflict between couples, that’s means less work for lawyers, and therefore less cost. (Yes, I do realise that may make me sound like a turkey voting for Christmas).

The court’s role should be limited to deciding disputes about finances and children, but there is no need for the court to deal with the divorce itself. Ending a marriage should be an administrative process, not a judicial one.

After all, you don’t need to go to court when you get married. Why should you need to go to court to get a divorce?

30 October 2017



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