‘Blame game’ ditched for divorce on demand

There are two remarkable things about the no-fault divorce bill approved in principle by the House of Commons last Tuesday. The first is that, with hardly anyone objecting or even noticing, MPs endorsed reforms that have been resisted by successive governments for more than 50 years. And the second was that, while the governing party was supposedly preoccupied with Brexit and choosing a new prime minister, parliament found the time to deal with such far-reaching social changes. 

Not that much time was needed. MPs gave the Divorce, Dissolution and Separation Bill an unopposed second reading after less than two hours’ debate. Its Commons committee stage will be completed before the end of this week.

Because the bill has gone largely unreported, it is probably worth summarising what it does. We all remember from law school that, since 1971, the sole ground for divorce has been the irretrievable breakdown of marriage. And whether we studied the original Divorce Reform Act 1969 or its successor the Matrimonial Causes Act 1973, we learned that irretrievable breakdown had to be proved by establishing at least one of five ‘facts’, memorably listed in the relevant subsection as (a) for adultery, (b) for behaviour, and so on. These requirements tried to reconcile the two aims of the Law Commission’s recommendations in 1966 – that divorce law should buttress the stability of marriage while enabling its empty legal shell to be destroyed with minimum bitterness.

But that was not how it worked out. Contrary to expectations, most divorces were not based on two years’ separation with consent. It was quicker, and easier, for spouses to rely on the fault-based facts. Nearly 60% of divorces in England and Wales are now granted on the basis of behaviour or adultery, 10 times more than in France or Scotland. This has led to confusion, bitterness and hypocrisy.

So the five facts will go. Spouses will simply click an online application to indicate that their marriage has broken down irretrievably. The court must take that statement to be conclusive evidence. Applicants will have to wait at least 20 weeks from the date of application before they can ask for a conditional divorce order, which is longer than it usually takes at the moment. After another six weeks, though, that order can be made final. 

That means the whole process will normally take at least six months – though it will still not be possible to seek a divorce during the first year of marriage. Justice secretary David Gauke told MPs that ‘the need to confirm to the court that it may make the conditional order, and to apply to the court for the final order, means that… the decision to divorce is a considered one, with opportunities for a change of heart right up to the last moment’. 

Note the new terminology – shorn of its ecclesiastical origins and borrowed from civil partnership law. No longer will there be petitioners, decrees nisi and decrees absolute. Another symbolic change is that it will be possible – though certainly not compulsory – for a divorce application to be made by both parties to a marriage. The bill makes parallel changes to the law governing judicial separation and the dissolution of civil partnerships. But there are no changes to the financial consequences of divorce or the arrangements for children.

‘It is time to end the blame game,’ Gauke said. But there is no doubt that the justice secretary is replacing it with divorce on demand. Fiona Bruce, a solicitor and  Conservative MP for Congleton, said the bill would ‘allow one party to walk away from the most important commitment they are likely to have made in their lifetime, without giving any reason at all and without their spouse being able meaningfully to object to their decision to do so’. The bill would weaken family relationships, she thought, reducing the rate of marriage and the stability it gives children. She wanted the government to promote reconciliation by providing better mediation services.

These are admirable sentiments. But, as other MPs told Bruce, preserving the current divorce law will do nothing to strengthen the institution of marriage. The law can give a lead to society but there are limits to its reach.

It is less than a year since Tini Owens lost her appeal to the Supreme Court against the refusal of the courts to grant her a divorce. Her husband argued successfully that he had not behaved in such a way that she could not reasonably be expected to live with him. Despite pleas from the justices, there seemed little chance that parliament would change the law before next February – when Owens can seek a divorce on the basis of five years’ separation. Perhaps she will not now have to wait quite so long after all.

joshua@rozenberg.net