‘No-fault’ divorce is not something to celebrate – The Critic

From Wednesday 6 April, “no-fault” divorces will be allowed in England and Wales. Under new legislation, brought forward by the ‘Conservative’ Government in 2020, a person will be able to simply walk away from their marriage, no reason given. Unilateral divorce on demand. Voices are now calling for this change to be rolled out across the whole of the British isles.

The significance of this legal and cultural change cannot be overstated. Under the previous law, a person wishing to divorce their spouse had to establish one of five ‘facts’ to show the marriage had broken down irretrievably. Three of these were fault-based: adultery, unreasonable behaviour, or desertion. A divorce on these grounds typically took twelve months. Two were based on separation: for 2 years if spouses agreed to divorce, and 5 years if not. All of this is now gone.

The only remaining hurdle to divorce is a mandatory 20-week “reflection period”. The clock starts ticking as soon as the divorce petition is issued. A “conditional order” is then applied for replacing the decree nisi. Six weeks later, a “final order” can be applied for instead of a decree absolute. From start to finish, divorces under the new system can be completed in six months – even less if the court wishes. The chances of a couple resolving their difficulties in this accelerated time frame are slim.

This new law may become more permissive still. The no-fault divorce legislation agreed by parliament gave the Government Henry VIII powers to reduce the time period involved in divorce law by secondary legislation, effectively bypassing proper parliamentary scrutiny – but only to make it shorter. Changes to procedures combined with easier online divorce is predicted to speed things up anyway, whether these powers are invoked to reduce the time period in law or not.

Britain’s chattering classes have warmly welcomed the new law. ‘Finally! End of the divorce blame game’, read a Times headline on 31 March. Its “great news” opined Nicola Thorp in The Metro. The broadcaster added: “No Fault Divorces can’t come soon enough. Planning my dream wedding was all well and good, but considering over 40% of marriages end in divorce, it would be impractical for me not to also plan my dream divorce”. The question is: are establishment figures right to be jubilant?

The case for liberalisation of divorce laws ran along these lines. First, that the alleging of fault was causing “conflict” between couples. Second, that the finding of fault had attached unfair “stigma” to divorce. And third, that the period of separation prescribed was too long. These arguments, parroted by politicians on the left and the right in parliament, and by various media commentators, fail to stand up to any real scrutiny. And they ignore the serious case against the new, lax approach.

The first argument, that alleging fault increased conflict between spouses, was a red herring. It was not the process of divorce that caused stress. The worst acrimony comes after the divorce during disputes over assets and children. Proponents of no-fault divorce were out-of-step with the public, which supported the previous approach. A survey carried out before no-fault legislation was agreed found more than 7 in 10 Brits wanted to keep fault grounds in law.

Most people in the UK recognise what the establishment does not: ditching fault rules opens the door to serious injustice. In the brave new world of no-fault divorce, a wronged spouse can no longer apply for a divorce citing adultery, unreasonable behaviour, or desertion and have the wrong behaviour of their partner recognised in the legal process. They are doubly betrayed: first by their spouse, then by the new, amoral system. Infidelity, abuse, and abandonment go unrecognised.

The second argument, that “divorce stigma” is bad and ought to be reduced, was equally poor. In complaining about stigma, proponents of the no-fault approach totally overlook the harmful consequences of divorce for individuals, families, and society at large. There should be negativity attached to divorce. It isn’t a neutral event. Divorces wreck lives – especially the lives of children. The phrase ‘stay together for the kids’ may be derided today, but the instinct is good.

Removing fault and ending any remaining vestiges of “stigma” around divorce is likely to result in our already appallingly high divorce rate growing worse. More divorce means more family breakdown, which is connected to various harms including poor mental health, alcoholism, and even homelessness. A 2019 study by the Centre for Social Justice stated: “family breakdown sits as the backdrop to so many broken lives, entrenching individuals in intergenerational cycles of poverty and instability.” The state has an interested in preventing divorce.

As for the final argument about separation timescales, proponents of the law change ignored pleas for a compromise from pro-marriage campaigners. In Scotland, divorces on the grounds of separation takes place over one year if a couple agrees, and two years if they do not. The UK Government could have reduced timescales in England and Wales to make the process faster, whilst keeping fault. Ministers chose to ignore this sensible suggestion.

The worst aspect of the campaign for divorce law change, in my mind, was the dearth of respect shown towards marriage itself. The elites of our society seem no longer to attach any special significance to marriage, unlike many in the British population at large. As this change was debated, there was no real recognition from the government, swathes of the media, and the legal establishment, that marriage is a societal good worth encouraging and protecting.

Marriage is the gold standard of commitment. It enables societal flourishing by creating the most stable and committed environment for family life. Its many benefits for physical and mental health are well-known, and enjoyed by men and women across these isles. Of course marriages can and do break down. But is far better for adults, children, and society when they do not. Couples should be encouraged to stay together and avoid divorce if at all possible.

Politicians should be upholding and championing marriage, and discouraging divorce. Instead, they have opted to trample on marriage and ease the tracks to separation. I fear the consequences of this for our already broken society could be grave indeed.

This article was first published in The Critic on 6 April 2022

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