On Monday night the Commons passed the greatest change to our divorce laws in a generation. The Divorce, Dissolution and Separation Bill cleared its final legislative hurdle with only token resistance from a handful of Tory and DUP MPs, paving the way for “no fault” divorce. Individuals who wish to divorce will no longer have to prove to the court that their relationship has broken down, and nor will the other party be able to hold up or deny them a divorce by contesting that it is necessary. It is an important step forward for how we consider relationships in this country.
Until this change, even where both parties wanted to end their marriage, only one could petition, citing either their separation of at least two years, or the other party’s adultery, desertion, or behaviour. It was a legal farce, which introduced unnecessary acrimony to proceedings, encouraged applicants to perjure themselves and did nothing to “defend marriage”. Divorce petitions were more likely to be rejected for spelling mistakes than for insufficient grounds, yet in theory a court could still have to consider whether relations between a husband and a lover were sufficiently penetrative to count as adultery.
The concept of finding fault in divorce had already become largely outdated. Where it was once decreed “Those whom God hath joined together let no man put asunder”, divorce has been subject to secularisation and liberalisation for nearly two centuries. The financial and social punishments for the “guilty” party had largely evaporated in the mid twentieth century. Indeed, no fault divorce had already been legislated for in the 1990s, but never implemented.
That is not to say that the rules had no effect. Divorce lawyers were almost unanimous in their belief that the need to prove marital breakdown led to unnecessary conflict between separating couples. This in turn would make it harder to co-operate on financial issues and with post-separation parenting. It could aggravate issues of domestic violence and coercion. In the worst cases, the court process itself could be used as an instrument of abuse. Studies in the US suggest that fault-based divorce leads to higher rates of female suicide and spousal murder.
There was little reason to maintain the fault-based system, yet legislative inertia held it in place until the case of Tini Owens highlighted the absurdity. When her husband objected to her grounds for divorce, he was upheld by the court. Subsequent appeals saw the Court of Appeal and Supreme Court condemn the state of the law, but it was in Parliament’s gift to change it, not theirs. Now no one will be compelled by the courts to remain married when they want a divorce.
None of this is to suggest marriage is unimportant. It remains the best way of providing a stable home for a family. Family breakdown continues to have an enormous social cost, both for those involved and those around them. Yet the complexity of the administration surrounding getting a divorce does nothing to change this. It simply worsens the effect of breakdown that is already taking place.
Those who took aim at this bill and those who supported it should be able to find common ground. Better systems should be in place to support healthy relationships – tackling domestic violence and coercive control, encouraging, and supplying easier access to couples counselling, and ending aspects of the benefits system which incentivise unstable family situations.
Divorce should not be attacked simply to get the numbers down. If that is the goal, ban it outright and be done with it. Rather, policies should encourage and support better relationships from the outset. The answer to the consequences of family breakdown is not to imprison people in unhappy marriages, but rather to nudge them towards greater stability and happiness in the first place.
No fault divorce is part of this. It is not an anti-family measure, but rather one that is anti-misery. An archaic system designed around outdated mores does not keep people together, it just traps them. Letting marriage, and divorce, evolve allows it to adapt to the modern world and for its benefits to be retained.
There is much to be done to harness the power of loving, stable family relationships, but it will not be achieved by maintaining artificial barriers rooted in Victorian morality. It’s about focusing on the needs and situations of modern families and individuals, harnessing the sincerity of social conservatives and the compassion of liberals. It’s about alleviating the causes of breakdown, both financial and social, and mitigating the results. This overdue change to the law does not run counter to that, but rather advances it.
