In recent years there has been a push for divorce reform and a ‘no-fault’ divorce system, especially since the case of Owens v Owens in 2018: a defended divorce which reached the Supreme Court as well as making headlines in the national media. Even as far back as 1988, the Law Commission published a report ‘Facing the Future’ detailing their findings and recommendations on divorce law. However, despite there being a drive and recommendation for reform, it has failed to transpire into legislation.
The courts have been unable to amend the current law as it is not within their scope and accept it is in Parliament’s domain to do so as divorce law is contained in statute. The issue with this is that the Government must consider public policy and opinion as well as social and moral values, hence why it has been a controversial subject as marriage is viewed as a status symbol, public statement of a couples’ personal relationship and a fundamental social institution in society in which, some view, divorce potentially threatens.
This essay will explore what the aims of divorce law should be and whether the current system satisfies them, as well as looking at why the law has so far failed to respond to the current calls for reform and, more importantly, why it remains such a disputed area.
A fundamental question to answer before going any further is what the aims of the divorce law should be. The Lord Chancellor in his foreword to the green paper in 1993 said:
“I believe that a good divorce law will support the institution of marriage by seeking to lay out for parties a process by which they receive help to prevent a marriage being dissolved. If that is not possible it should seek to eliminate unnecessary distress for the parties and particularly for their children in those cases where a marriage has broken down irretrievably."
That being the government’s current position, those aims were also set out in the Law Commissions report. There are two fundamental aims in that statement: divorce law should support couples who have a chance at reconciling and if that is not possible, make their divorce as easy as possible. This is why reform in this area is such a controversial topic, these two aims appear to be in conflict: should the divorce law help couples to reconcile or it should make the process easier? By the time couples seek a petition of divorce, some may regard that as evidence itself that the marriage has irretrievably broken down. It seems that aim is counter-productive, as by the time a petition for divorce has been submitted any attempts at reconciliation could possibly be viewed by the couple as actively obstructing the process thereby making the divorce more frustrating and thus, not achieving the aims it is meant to. Peter McCarthy questions in his article whether the role of divorce law is for saving marriages. This also comes down to the opinion on whether we should retain the idea of ‘offence’ and ‘fault’ when it comes to marital breakdown.
The fundamental issue is whether our current divorce law satisfies either of those aims. We currently have a fault-based hybrid divorce system. For a no-fault divorce parties either have to wait 2 or five years depending on whether the divorce is defended; if they require a divorce sooner, blame must be proportioned. 2 years is considerable time to wait for an undefended divorce, especially if individuals are wanting a divorce for specific reasons e.g. to access financial remedies or remarry in that time. This is a possible reason for why fault has been abused in the divorce system, so petitioners can achieve a quick divorce. Research by the Nuffield Foundation and Liz Trinder has found that the current law increases conflict and suffering and also encourages dishonesty in divorce as the current law incentivises people to exacerbate their claims to avoid waiting. Also, in their national survey, 62% of petitioners and 78% of respondents said that using fault made the process more bitter. The Nuffield Foundation and Ira Ellman also found no empirical evidence that by having fault it deters divorce, but in fact it has the opposite effect. The Law Commission also found the law to be misleading and discriminatory, as well as provoking hostility and failing to support marriage.
It is clear to see that the current law does not satisfy the aims of divorce law as there are currently too many flaws. It does not support married couples – evidence suggests it fuels bitterness. If those statistics are an accurate depiction of how divorcing couples feel, then it is not possible that the current law is helping to support the institution of marriage and clearly it does not make the process less distressing for couples or children. It is time to look at what alternatives have been recommended, to replace the current system, to possibly better achieve those aims and to balance between the demands of the reformists and the traditionalists of divorce law.
David Gauke MP the Justice Secretary submitted a consultation on divorce reform, launched September 2018 and ending December 2018, seeking views on divorce reform. The consultation proposals include: removing the requirements and evidence of your spouse’s conduct, introducing a notification process and removing the ability to contest the divorce as well as other proposals. Its aim is to remove blame from divorce proceedings and to try and lessen the bitterness between couples. This could be evidence that the views are shifting in favour of reform since the failure of no-fault implementation in 1996, if the government are developing an appetite for reform.
The point is that not everyone has a universal acceptance of what divorce law should aim to achieve, hence the controversy. There has been a strong call for no-fault divorce, especially after the case of Owens v Owens and after Scotland reformed its divorce law a decade ago. Scotland changed its waiting times from 2 to 5 years from one to two years and, the effect, Racheal Kelsey has argued, is that it has allowed couples a dignified way of ending their relationship. But it has also allowed couples a dignified way of changing their legal status, which also has legal consequence. Resolution is a national group of family lawyers that are campaigning for a change in divorce law. They are in support of the notification system put forward as well as removing blame from divorce proceedings. Lady Hale, also a vocal divorce reformist recommends and supports the same system as Scotland.
However, there are strong arguments for the retention of fault in divorce still, and against reform. Colin Hart is the chairman of ‘Coalition for Marriage’, as well as being the director for the Christian Institute. Both institutions and Hart himself, oppose reform. He recently stated in an interview with Joshua Rozenburg that he believes divorce law should help couples reconcile and not facilitate separation. Hart’s views are not based on any legal argument, but on the basis of pure social policy and religious reasons. However, Robert Rawthorn makes an interest comparison for why fault in divorce should be retained and his reasoning for the retention of divorce is far different. Rawthorn’s analogy is comparing marriage to business partners, and their relationship. He argues that both are institutions of trust and both make long term investments based on that. He argues that requiring fault allows those who have fulfilled their marital obligations to be protected.
Removing fault and having a notification system would likely make divorce easier – this is why strong supporters of marriage oppose this – but there are wider issues than the law to consider. By removing fault there is a concern that it could possibly trivialise marriage and reduce it down to nothing more than a mere tenancy contract. However, Bainham argues that fault is still important because it is relevant to the welfare of the family, in situations such as domestic violence or for the welfare of the children. Also, Haskey found that 71% of public opinion supported the retention of fault as a basis of divorce. From this we can see why divorce is a controversial topic as its basis goes back to public and social policy and welfare issue, which is greater than this simply being a legal debate.
Answering the question directly for why divorce law reform is so controversial is looking at the challenges it must face. Arguably, the biggest hurdle is a political one. The presentational problem with divorce, that the Government and the Law Commission both recognise, is that they cannot be seen reforming the law to make it ‘too hard’ or ‘too soft’ for legal and political reasons. The political motive is that the Government is held accountable by the people through elections and votes, so divorce reform has never been high on the political agenda, this is evident by the failure to implement schedule 2 of the Family Law Act 1996. However, a consultation has been launched to try and gauge societies current opinion on divorce reform. Whether Parliament will advance any further with the consultations findings is unknown, but it is an important step in the direction of divorce reform.
Changing social values and norms do play a part in the shifting attitudes on marriage and divorce. For example, cohabitation is on the rise in the UK, it is the second largest family type as well as being the fastest growing: up 15% from 1996 to 2017. It appears there is not the regard and the support for upholding marriage like there once was. Looking at the case of Keidan v Steinfeild illustrates this point: a man and a woman wanted a civil partnership as they rejected the fundamental principles on what marriage, historically, was based on. Lucy Frazer argues that the law needs modernising and to keep adapting with these societal changes. However, there is evidence of a shift in society, but it must not be forgotten that in 2016 over half of the population in the UK were married. Although there are vocal groups and individuals calling for reform (even based on empirical evidence), it would be naive not recognise how fundamental marriage still is in our society and how highly regarded it still is.
Views on marriage do still remain strong. Rod Liddle is vocal on divorce reform. He believes that divorce reform would undermine personal responsibility, and this would increase divorce rates. He is not alone in sharing that belief as Baroness Ruth Deech DBE agrees with that assumption. Although this may be their view, there is evidence to the contrary in Scotland, which has the lowest divorce rates since its reform in 2006. However, Liddle does go further, and states that reforming the divorce law would causes poverty and misery for children whilst also weakening the institute of marriage. However, no statistics was used to support his claim that divorce causes poverty; but nonetheless he supports stringent divorce laws as people would deliberate and take greater consideration before entering marriage.
To conclude, divorce is controversial because people have different ideas on what its aims should be and whether individuals should be held liable for breaking their marital duties. Marriage is a legal status which does impose legal obligations on spouses, even after divorce e.g. financial remedies. The law in this area must balance between individual autonomy and the liability on spouses for breaking their ‘duties’. It is evident to see that divorce reform has and always will be a controversial issue, the problem Parliament have is moving with society – something historically it has had issues with. There is also a strong focus on whether we should retain a fault-based divorce system. However, what seems to lack in academic writing and debate is the question on whether the aims should be revised. Divorce laws exist to end marriages, but to also try and save them at the same time. This creates a real conflict that is rarely discussed. However, as this essay has asserted, there is a strong public policy and social issue that surrounds this area and the focus cannot simply be legal.
As is currently argued by some academics, if the divorce law is reformed, with no fault being abandoned, the law would be simpler, but it would also be socially beneficial for families also. This would satisfy the aims of divorce law also. Scotland has had no issues since reforming divorce and removing fault, it could be time that the UK followed suit too.