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Why advocates of marriage have nothing to fear from no-fault divorce

(image copyright The Times)

The Times and Marriage Foundation will be hosting a top-level debate “Is it time to reform our divorce laws?” at 1830 next Monday 24 September at the News Building. Details of how to get tickets here

Last week the government launched a consultation paper about reforming the legal requirements for divorce.

The proposal to remove fault-based divorce meets with near universal approval from the legal profession, and also from us at Marriage Foundation who have been running a campaign with the Times newspaper for the past year or more.

The system for the last fifty years has been that to get divorced requires the irretrievable breakdown of a marriage, as evidenced by one of five ‘facts’. Three involve ‘fault’ and two involve ‘no-fault’. If both spouses agree, the couple can divorce after two years of separation without citing fault. If only one party wants the divorce, they must wait five years. The alternative is to cite either adultery, unreasonable behaviour, or desertion. These are the fault-based divorces which comprise 60 per cent of all divorces in England and Wales.

What’s wrong with this system is that it is, and always has been, a sham.

As lawyer after lawyer will attest, most couples have no idea of the law when they make their decision. It’s only when they walk through the door that they learn if they want to get the divorce over and done with before the two year separation period, they have to make up some reasons why one spouse should take all of the blame. This is hardly conducive to the really important process that really needs to be discussed, less ‘why did things go wrong in the past’ and more ‘how are we going to manage children and assets in the future’.

The government has now listened to the chorus pushing for reform of the system and now proposes that all divorces proceed after a six month-plus waiting period from notification. The timing of this is up for grabs and is the focus of the consultation. It could be a year. But the principle is clear: there will finally be an end to fault-based divorce in England and Wales.

So does this make divorce too easy and will it therefore undermine marriage, as some advocates of marriage suggest?

I see no reason why it should do so. And I see good reasons why this is actually supportive of marriage.

First of all, we have had no-fault divorce for the past fifty years. The issue is one of timing. How long should a couple wait before they can fully unwind the legal agreement into which they entered when they got married? It’s precisely because couples don’t want to wait two years that they are then forced to pin the blame on one spouse, as they do in 60 per cent of cases. Should the timing be shorter as a result? However long you think it should be, the principle of no-fault divorce has been already been established for a very long time.

Second, it’s not clear why we should have fault-based divorce at all. All humans are fallible. Nobody is perfect. This does not in any way excuse bad behaviour. But it does mean that in a relationship involving two fallible people, nobody can be judged faultless if it goes wrong. In the most extreme case where one person has behaved outrageously badly and mistreated his or her spouse appallingly, I can buy 95/5 per cent responsibility. I just can’t buy 100/0 per cent. Without any other evidence, this argument on its own is a knock-out. Divorce is the failure of a relationship, not just one individual.

Third, there is compelling evidence that reducing the no-fault waiting time from two years will have no effect on divorce rates. In Scotland, the law changed in 2006 to lower the waiting time where both parties agree to one year and where only one wants the divorce to two years. The result was a temporary increase in divorce as the backlog of two year no-fault divorces were able to complete in one year. Thereafter Scottish divorce rates continued to trend downwards in exactly the same way as they have been in England and Wales. Whereas before the change, 19 per cent of Scottish couples cited one of the three fault-based ‘facts’, now only 6 per cent do so. The conclusion is clear. Given the chance, most couples would rather wait one year and not have to cast blame. Reducing that time does not encourage more couples to divorce.

Fourth, it’s breaking up that is hard to do, not the legal process. The hardest part of splitting up is the decision to unravel years of entangled family history and face the prospect of a very different future somewhere else. Having walked through the doors, the decision is made and that’s it. Once started, it is exceptionally rare that a couple will reconcile. Professor Liz Trinder’s excellent Nuffield report showed this more clearly than anywhere I’ve seen. Of her nationally representative sample of 300 couples filing for divorce, some 51 couples did not complete the process. Some proponents of marriage, such as the Coalition for Marriage, correctly point out that this is a common pattern. In every year, according to Ministry of Justice figures, about 10 per cent of couples do not complete the divorce process. But it is wrong to conclude from this that all, or even most, of these couples have got their marriage back on track. Of the 51 non-completing couples in the Nuffield study, just one couple reconciled. So that’s one out of 300 divorces. Making divorce a registration process is not going to save marriages.

Marriage Foundation is all about commitment and stability for couples and children. So we have thought about this issue a great deal.

  • Will the removal of no-fault make divorce too easy? No.
  • Will it undermine marriage? No.
  • Will it prevent saveable marriages from being saved? No.

I do believe that many or most divorces are avoidable. My own near miss many years ago is a good example, about which I and Kate wrote in our book What Mums Want and Dads Need to Know. In essence, the secrets of making marriage work lie in commitment to one another, in men taking special responsibility for the well-being of their marriage, and in the way we treat one another with kindness and forgiveness. Do that and we can reduce family breakdown significantly.

If you want to know more about how to make a marriage work, or how to bring yours back from the brink and turn it into what you’d always hoped it would be, get a copy now and read it.

But once couples walk through that door, that’s it. Even if we faced the threat of divorce, we never got to that stage.

Changing divorce to a notification or registration process with a sensible cooling off period will not make divorce easier, will not cause divorce to rise – other than in clearing the backlog – and will not undermine marriage. It will however remove unnecessary conflict and bitterness from the divorce process.

I hope this will allay fears.

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