The debate over whether or not it is finally time to introduce blameless divorce in this country has been raised again in the guise of a new House of Commons briefing paper “No-fault divorce” published in November. You can read the full paper here.
The paper sets out the arguments both for and against having a no-fault based system, which I found of interest given that a blameless divorce system is surely an absolute and unequivocal no brainer!
As things currently stand, it is only possible for couples in England and Wales to divorce in the first two years after separation, if one of them accuses the other of committing adultery or behaving unreasonably.
Those in favour of a no-fault system believe it will reduce the conflict, acrimony and cost of divorce, which can often be caused by allegations of fault in matrimonial splits. The report identifies that in some cases, the assertion of fault is simply a “charade” to enable couples to obtain a quick and easy divorce. In my experience the most common reasons for divorce amongst my clients is that they simply “grew apart” or “fell out of love with each other”. Unless these clients are prepared to wait two years, they are forced to play the blame game, which does seem pretty ridiculous in this day and age.
This is not a new problem. I can remember being confronted with the very same dilemma as a trainee solicitor many years ago. A client had come in to see me about obtaining a divorce. He and his wife were on very good terms with each other and had simply decided that they did not love each other anymore. They had agreed the arrangements for their two young children and also the financial matters. It was a very civilised, sensible and grown-up decision. But as neither spouse blamed the other for the breakdown of the marriage they could not get divorced; an absurd situation.
When I spoke to one of the senior partners about the case, she gave me some very poignant advice that remains relevant to this day. She said: “Even in the happiest of marriages there is always sufficient unreasonable behaviour to enable parties to get a divorce.” She was of course completely right and I had to go back to the client and explain that provided one of them was prepared to blame the other for the breakdown of the marriage, despite this being a complete charade, they would then be able to get a divorce.
I have therefore always considered the current system to be a complete nonsense. We have a system in this country where the majority of divorcing couples are forced to lie to the Court to get a divorce. So what are the arguments against introducing no-fault divorces I hear you say? I have summarised the main points below:
it would weaken the institution of marriage
the risk of divorce rates increasing
I am at a loss to understand why forcing couples to blame one and other for the breakdown of their relationship weakens the institution of marriage.. Are people really going to take marriage less seriously because married couples are able to mutually agree to bring their marriage to an end in a civilised and amicable way without apportioning blame? I actually think the concept of marriage is now viewed by many as being an old-fashioned and archaic custom, which is deterring couples from getting married.
Will the divorce rate increase? Who cares? Does it really matter? I’m sure there will probably be a short-term blip in the figures, but only because those couples not wanting to apportion blame would be able to start the divorce process sooner. Over time the overall numbers should level out.
The argument that divorce leads to women being poorer is based on a study in the US that showed that 75% of low-income divorced women with children had not been poor when they were married. What is meant by the term “poor” I do not know – I’m sure it is defined in the US study, but I really didn’t have the stomach to read that too! The argument appears to be that if you make it harder for couples to end their marriage they will be forced to remain married, so the wives will be financially better off – the fact that they are deeply unhappy, depressed and stuck in a loveless marriage doesn’t seem to be of any significance at all. I wonder if any of the women in the study were asked if they would rather be richer and still married to their husbands or poorer and divorced - I suspect that the answer would be the latter. Are husbands also not poorer on divorce than before they were married?
I just don’t see how making it harder for couples to get divorced solves the problem. Are we not just sweeping the plight of these women under the carpet? Is the answer not to make sure these women are properly provided for financially on divorce?
The report also identifies that the biggest losers in divorce are the children. In a 2009 review by the then Department for Children, Schools and Families it was found that “a child not growing up in a two-parent family household was more likely to experience a number of problems”. The answer then is to force parents to remain married, right? It is certainly a very common reason given by many of my client for having stayed in unhappy and unloving marriages for so long. Do the children thank them for the sacrifices they have made to maintain the stability and security of a “two-parent family”; usually not and in many cases the complete opposite. If the parents are unhappy then the children will inevitably pick up on it and they will be unhappy too.
What is, however, of far greater concern, is the number of parents that do not marry because they consider it to me more trouble than it is worth. There are very many unmarried couples that still believe that they are afforded rights and protection as “common law husband and wife” – a concept that is not recognised in law – it simply does not exist. Marriage is of course a way for couples to show their love and commitment for each other, but it also ensures that the financially weaker party, quite often the primary carer for the children, is not left high and dry in the event of a separation. On divorce the Court’s “first consideration” is for the welfare of the children and ensuring their needs are met. The Court is able to make property adjustment orders, lump sum orders, periodical payment orders and even pension sharing orders to ensure the financially weaker spouse with care of the children is not disadvantaged in any way. In stark contrast to this, where parents are unmarried the financially weaker party has no protection at all and in most cases their only recourse is to the Child Maintenance Service. It is the children of these families that are truly disadvantaged when relationships breakdown.
It is therefore important that the institution of marriage encourages people to join its ranks, rather than deterring them. If more couples are likely to marry because it is perceived to be quicker and easier to get divorced, then so be it. The divorce might be quicker and easier, but the financial obligations and responsibilities that come with marriage still remain. As the number of cohabiting couples is on the increase, whilst marriage appears to be in the decline, it is only a matter of time before the chickens come home to roost for many unmarried couples, particularly those with children, and they realise that the law, as it currently stands, provides them and their children with very little, if any, protection if their relationship breaks down.
The sad reality is that this will probably result in considerably more poorer women and disadvantaged children than any increase in divorce rates caused by a no-fault divorce system. I think it’s definitely time to introduce blameless divorce in this country, but what is even more urgent and vital is for the government to introduce new legislation to protect unmarried couples with children.