“DIVORCE MADE EASY.”

“DIVORCE ON DEMAND.”

“QUICKER DIVORCES ON THE CARDS.” 

“MORE BROKEN FAMILIES.”

These (and other similar) headlines screamed from the front pages of newspapers across the country this week as, after fevered anticipation, the government finally announced plans to reform divorce law in England and Wales.  

Following a detailed public consultation last autumn, the government’s proposals for reform have (rightly) been heralded as the most wide-ranging in a generation.  Although it will remain necessary to demonstrate that a marriage has broken down irretrievably, the five existing facts will be abolished and replaced by a statement of irretrievable breakdown.  The requirement to prove fault or a period of separation will be removed and there will be a 6 month minimum period from notification to final decree.  It will be possible for applications to be made jointly, reflecting the reality of what is often a joint decision by divorcing spouses.  It will also no longer be possible for a spouse to defend a divorce.

So far, so good (and pretty much exactly in line with what professional organisations like Resolution have been advocating); and also pretty straightforward.  So why some of the wild assertions peddled in the media?  I set out, with some trepidation, to identify and debunk some of the top myths around no fault divorce.

1.       “As has happened in every previous liberalisation of divorce law, the number of divorces will go up, as will the misery it causes to families,” the Christian Institute.

The commonly made charge about what some papers described as courts being braced for a “surge” in the number of divorces simply doesn’t stand up to scrutiny and isn’t the experience of other jurisdictions which have gone through the transition to no fault divorce. 

The Nuffield Foundation said in 2017 that there is no evidence to suggest that the removal of fault would have a significant or long-lasting effect on divorce rates (see “Finding Fault?  Divorce Law and Practice in England and Wales” – “The lack of relationship between divorce law and divorce rates” :

Looking at the research as a whole, there is little consensus that no-fault or unilateral divorce has had any clear impact at all on the propensity to divorce, though it is common to find short-term blips in response to policy and legislative changes. A classic example of a short-term blip occurred following the Family Law (Scotland) Act 2006. Until 2006 Scottish divorce law was almost identical to that of England & Wales…The 2006 Act reduced the separation periods from two years to one where there was consent and from five to two years otherwise. The rarely-used ‘desertion’ Fact was removed entirely.  The result was a classic but short-lived mini-spike in the numbers of Scottish divorces immediately after the implementation of the 2006 reforms. Within two years…the numbers of divorces reverted to the previous level, and have continued on a slight downward trend. Given the similarity in the law between Scotland and England & Wales, a reduction in separation periods south of the border might be expected also to result in a spike, but one that would equally be short-lived.

In its response to the consultation, the government also makes clear that it does “not expect the divorce rate to increase in the long term, but there may be a short-term transitional increase in the volume of divorces.”  For a balanced analysis, see this BBC piece : No-fault divorce: Could it increase rates?

Likewise, there is nothing to suggest that “misery…to families” will increase as a result of no fault divorce. It could rightly be asked, what of the misery caused to couples and children by a fault-based system? The ability to defend means that couples can end up locked in loveless, sometimes abusive marriages, with children caught in the crossfire of conflict. One only needs to look at the miserable experience of those who have been through the existing system, who are frankly best placed to comment on the proposals, to see that what we have causes untold misery to families.

Notwithstanding cases of abuse etc, ascribing fault is unhelpful at a time when paradoxically parents need to work together more closely than ever. Who benefits from shutting the barn door after the horse has bolted? Takes two to tango.#nofaultdivorce https://t.co/OcpZkUK8D3

— Ｌａｕｒｅｎｃｅ Ｆｏｘ (@LozzaFox) April 9, 2019

2.       “Two consenting parties already have access to a no-fault divorce,” the Coalition for Marriage.

This isn’t really right, is it? Admittedly, it is currently possible to divorce without alleging fault if a couple have been separated for TWO years, assuming two consenting parties. Of course, as Mrs Owens found to her detriment, if a spouse is determined doggedly to hang onto the marital state (despite it being a union of two), then the spouse who wants out will have to wait a whole FIVE years (it is noteworthy that many serious crimes carry lesser sentences).  

The equally unpalatable options at present therefore are either, as around 60% do, to pursue a fault-based divorce (and, if relying on behaviour, ensure that the particulars are rather more robust than those upon which Mrs Owens relied – because who doesn’t want to mark the end of their long and no doubt at times happy marriage by using punchy allegations to explain why their husband or wife was to blame for it all coming to an end? – and/or hope for a different judge to consider the particulars than the judge who looked at Mrs Owens’ petition); or sit out two years’ separation and hope that your spouse consents; and if your spouse is abusive, vengeful or just downright and pig-headedly determined that the two of you can make your marriage work despite your unhappiness, wait for five whole years before you can divorce.  All the while, children are exposed to conflict and financial claims cannot be brought.  If that is the no-fault system which is said to exist at present, I’ll pass.

It is clear that by having to wait for 2+ years for a no-fault divorce, we are also considerably out of synch with other civilised legal jurisdictions.  “Finding Fault?”, references a table comparing the current divorce law in 13 other jurisdictions. Most have a mix of divorce by mutual consent and divorce without mutual consent. With consent, the separation periods required range from divorce being available immediately (Denmark, Spain and Sweden if no minor children) to one year (Scotland and Norway). The only country with a longer period of separation in that instance is Ireland (itself having a referendum on the subject next month). Where the divorce is not by mutual consent, the typical waiting periods range from 6 months to 1 or 2 years. Therefore, England and Wales is by far the outlier in terms of the period of separation required to achieve no-fault divorce.

As the government says in its consultation response, this is not “fair for couples who cannot afford, for practical and financial reasons, to separate without agreeing finances upon divorce.” What is more, as Rights of Women and others have pointed out, the existence of “no-fault divorce” which enables a spouse to perpetuate abuse by withholding consent to a divorce based on two years’ separation, cannot be right.

The current choice (between an immediate fault-based divorce or a delayed no-fault divorce) leads to a “disproportionate reliance upon fault“, as the Nuffield Foundation has found.  “The use of fault in England & Wales is completely out of the norm for an advanced democracy, with sixty per cent of all divorces relying on fault. That figure is ten times that of any other jurisdiction surveyed here, with France at 6.9% and Scotland 6% being the closest.” 

3.       “DIVORCE MADE EASY – Couples can just say they’ve had enough”, Metro headline.

This headline does people a disservice, by suggesting that unless the State somehow makes divorce difficult to protect people from themselves, they will all be clamouring to plunge headlong into divorce, like lemmings. The reality is that divorce is never easy.  Everyone who has been through it knows that.  Family lawyers see that a spouse doesn’t just get up one morning and think “I know, I’m going to go and see a divorce lawyer today and get proceedings started immediately”.  Rather, they agonise over their decision.  They sit in our offices and weep.  They will invariably have been for months, if not years of couple’s counselling already.  Often they will ask us for recommendations of counsellors.  As lawyers we will always encourage them to stop and take stock.  Divorce is the very last stop on the line.

David Gauke MP, the Secretary of State for Justice, says : “Divorce will always be one of the hardest decisions anyone has to take… No law can ever prevent or remove conflict at a time of great personal and family upheaval. What the law can do is to minimise the potential for couples to entrench positions against each other, and to allow proper consideration of the decision.” 

So, does the proposed new law make divorce “easy”?  I would venture to suggest not.  Yes, the fault-based grounds go, as does the need to show a period of separation. Yet what is proposed is more intellectually honest.  Both Munby LJ (in Owens) and Professor Liz Trinder have spoken of a lack of intellectual honesty in the law as it stands, with Finding Fault noting : 

In practice (and as a matter of authority), there is no necessary relationship between why the marriage broke down and the Fact upon which the divorce is obtained. There is a long tradition of one, or both, of the parties deciding that they want to divorce and then finding a way through the various legal options to achieve that goal. That is not to say that petitions are never accurate accounts of the reasons for the marriage breakdown, rather that petitions may generally be best viewed as narratives produced to secure the divorce.

It cannot be said that the legal test for divorce will be made easier.  The threshold will remain the same, namely that the marriage has broken down irretrievably.  It will not be possible to obtain a divorce for frivolous or temporary reasons.David Gauke makes clear : “The reform the Government proposes does not make divorce easier.”

4.       “Quicker divorces on the cards,” ITV News. 

Again, this is not true, or certainly not true in all cases. 

The existing bar on divorces for the first 12 months of marriage will remain, so that couples have an opportunity to adjust to married life and endeavour to overcome any early difficulties. 

And the length of time it takes to divorce may actually increase in many cases, as the government proposes to introduce a minimum timeframe of six months for “reflection and reconciliation” between the date of the petition and the ultimate divorce.  At present, the process can be conducted and concluded in as little as four to five months in an undefended process (or rather, it could be until the introduction of the divorce centres and the well-publicised delays in the Bury St Edmunds divorce centre in particular).  No longer will this be the case. 

So within the government response, it is said : “Under the current process, some divorcing couples progress from petition to final decree in three or four months. Regardless of any legislative reform, this will be made faster by 2020 when the end-to-end digital divorce process for users is fully online. Compared with both current and fully online timings, any new minimum timeframes would make the process slower for the majority of cases, but quicker for those who had previously waited for two or five years’ separation”.

5.       “DIVORCE ON DEMAND”, Daily Mail headline. 

Again, this is misleading and overlooks the fact that divorce on demand is, in reality, available now.  The proposals retain the existing process that requires an application, confirmation and re-confirmation of an intention to divorce over time, with a petition followed by an application for Decree Nisi (to be renamed the Conditional Order) and an application for Decree Absolute (or Final Order).  This provides additional confirmation that a divorce continues to be sought. As is said of the proposals for the new law in the government response to the consultation : “We have heard that the re-affirmation required by the current process – described as a “triple opt-in”… – is unusual when compared with international jurisdictions. These typically include either one or two active steps. However, we want to provide opportunities to change course so that the decision to divorce remains considered. We believe that it is right to retain the three decision points for applicants as it keeps the important safeguards of the existing process and requires the applicant’s confirmation and reconfirmation of the original application.”

In fact, the Nuffield Foundation has pointed out that the existing process is

something tantamount to immediate unilateral divorce ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state.”

Obviously a spouse can currently petition for divorce based on fault without any minimum waiting period and if they make the particulars weighty enough, that is effectively unilateral divorce on demand.

6.       “Spouses lose right to fight divorce at end of unhappy marriages,” The Times headline.

Of all the screeching headlines this week, this one wins out for actually having a scintilla of truth (though why it would be controversial is unclear).  The government rightly points out that “marriage is a consensual status and…contesting the legal divorce does not, and cannot, revive a marriage which one party to the marriage regards as being at an end.”  

And the desire to defend is presently rare; only 2% of divorce petitions are defended.  The Nuffield Foundation has calculated that just 0.018% of divorces each year (or fewer than 20) reach a final hearing.  It notes that “the number of contested trials has been extremely low since at least the early 1980s.” 

In its report “No Contest : Defended Divorce in England and Wales”, the Nuffield Foundation notes that “Most defences are not attempts to save the marriage, but quarrels about who should be blamed, mostly triggered by allegations about behaviour. Claims that the marriage is saveable generally reflect tactical considerations or are wholly unrealistic…”.

So rightly, the government position is stated as follows :

Under the current law…a divorce can be refused only for a legal reason and never simply because the respondent wishes to remain in the marriage. This is an important distinction. The current ability to contest is not an effective preventer of divorce or an aid to reconciliation. Instead, it can introduce or aggravate ongoing conflict and can be exploited by domestic abuse victims.

So a tick for an accurate headline. And with very good reasons underpinning the proposed changes behind the headline.

7.       “Reduce the status of marriage to that of a tenancy contract which can be dissolved at minimal notice by either side with no expectation of permanence,” The Coalition for Marriage.

I have set forth already my views about the charge that the new law would provide unilateral divorce on demand. But does no fault divorce somehow lessen the marital state?

I would say, an emphatic no. Marriage will remain a solemn contract that attracts respect and support from across the political spectrum.  However, as the government rightly noted,

if a divorce could be refused because the respondent felt the marriage vows inviolable, that would leave the petitioner trapped in a marriage in which they were no longer willing to be a part, and to a spouse to whom they had effectively abdicated any moral responsibility.

Surely an institution whose members genuinely want to be married is worthy of more respect than one in which they can remain bound against their wishes?  Is it the place of the state to make divorce difficult, to leave couples bound together regardless of their wishes? Or should we respect couples’ autonomy to make and terminate their private contracts? I would venture to suggest, the latter.

So in the government response, the conclusions reached were :

While we appreciate views from those who are concerned about protecting the status of marriage, there is no evidence that the fact requirement or the ability to contest protect marriage…For those holding that marriage is a lifelong contract, and preferably not dissoluble at all, the proposal [to remove the ability to contest] generated concern. For others holding that marriage is a voluntary union that demands consent and mutuality in the relationship and that one party should not be involuntarily tied to the other, the proposal was welcomed…We acknowledge that it may at first sight seem unfair that a marriage can come to a legal end without both parties agreeing to it. Under the current law, however, the court will grant the decree of divorce if the fact or facts alleged have been made out. What the court has never been able to do is withhold the decree merely because the respondent wished to remain in the marriage.

The law cannot save marriages or prevent divorce.  What it can do is make things easier for couples to reconcile if they can and to move on as constructively as possible if not.

8.       “10% of the couples who begin a divorce petition to abandon it before finalising,” The Coalition for Marriage.

Absolute poppycock. This is something that gets lobbed at me every time I go head to head in the media with the Coalition for Marriage and I’m grateful to Liz Trinder for giving me an evidence basis upon which to found a response.

Per the Nuffield Foundation’s “Taking Notice? Non-Standard Divorce Cases and the Implications for Law Reform“, it is true that there are over 10% more petitions issued than divorces granted each year.   It is suggested that this may be indicative of reconciliations facilitated by the current law.   However, analysis by the Nuffield Foundation has reported that the there is

little evidence of a joint decision by couples to give up on a divorce and to seek reconciliation.  Instead, the majority of petitioners not reaching decree nisi appear to have been defeated by procedural and legal difficulties, largely caused by the non-cooperation of the ex-partner. 

Most cases not reaching decree absolute were due to protracted negotiations over finances. In other words, the reason decree absolute hadn’t been reached was that proceedings were ongoing. Some may have pursued an alternative petition, whilst others may have continued with an informal separation. Analysis by the Nuffield Foundation of the 51 non-completions showed that only 2 cases may have attempted a reconciliation (which, if borne out, equates to around 300 couples per year, not the 10,000 odd suggested by the Coalition for Marriage.

Unlike the other options, there is the possibility that notification would be MORE facilitative of reconciliation than the current system. The provisions within the current law do not support reconciliation and the availability of fault appears to lead to faster transitions from separation to divorce. With a notification system through an online portal, the parties could be directed at the outset towards online sources of advice and help in relation to marriage support and counselling and thinking about children and finances. Unlike separation Facts which generally require the parties to live apart, with notification the parties could continue to live together. In some cases that may be more likely to enable an opportunity for a rethink and reality-check than enforced separation, particularly with access to online relationship tools following registration in a notification system.

9.       “Neither is it fair to the spouse who wants to stay married to tell him or her, tough, you’ve got to lump it,” The Spectator.

It is suggested that the proposals punish a “faithful” spouse, denying them the chance to have recorded (what they consider to be) the reasons behind the breakdown of the marriage.  The Coalition for Marriage has argued that the proposals “could see a person divorced, have their access to their children ended, their assets divided and themselves removed from their home by court order, all despite being faithful to their marriage vows.”

But this is far-fetched and misses the point.  The current system (rightly) does not punish the “misbehaving” spouse or reward the other, morally virtuous spouse.  The reasons for the breakdown of the marriage are usually more nuanced than a binary choice between two people of who has behaved worse.  In the (extremely rare) circumstances where the Court ought to have regard to a spouse’s conduct, there are opportunities for it to do so in the financial remedy or children proceedings. And I hold no truck with the suggestion that a wronged spouse should have an opportunity to say in a legal document that their husband or wife has behaved like a rotter, and not be deprived of that right (something that both Jenni Murray and Vanessa Feltz have put to me in interviews, using the phrase “feel like justice has been done”). I always say that a divorce petition is not a place for recrimination and rage; that we are quite used to seeing clients in the first flushes of anger having just discovered an affair etc; but that we always try to talk them down from the ceiling so as not to fan the flames, and invariably when the dust has settled they thank us for that. Removing fault as an option removes the ability/temptation for an angry spouse, particularly where unrepresented, to go to town in their petition.

10.   “[The proposals] put the most vulnerable at risk by removing the protections in the current system for those who become disabled or suffer a financial setback and whose spouses currently cannot divorce them on this basis,” The Coalition for Marriage. 

There are different ways of looking at this. Arguably, in many ways the current law puts the most vulnerable at risk, as it leaves them at the whim of their spouse who may defend their behaviour particulars successfully and then withhold consent to a divorce so that they are obliged to wait for 5 years’ separation (all the while unable to access financial remedies). That leaves many vulnerable people high and dry.

It’s understood that the concern under the new regime is the reverse; that a person is vulnerable to their spouse divorcing them on a whim without financial protection. But the most vulnerable are more likely to be protected by the new regime than the old (as hinted at by various domestic violence groups’ support of the proposed changes).

The current law allows a divorce based on 5 years’ separation to be prevented if the respondent can demonstrate that it would result in grave financial or other hardship to them.  In practice, there have been no reported cases of successful actions based on “other hardship”, and recent reforms make actions based on financial grounds extremely unlikely.  The government states that

the required protection in such cases can be addressed under the court’s current flexibility when determining financial provision on divorce, or by delaying the grant of decree absolute, and therefore believe it should not prevent a divorce from taking place.

Indeed the Nuffield Foundation reports that retaining the bar could mean it is used by spouses to be difficult or obstructive or retain control of the other. 

In truth, the current system does little to protect vulnerable spouses in unhappy marriages.  If anything, it can introduce or aggravate ongoing conflict, which can be exploited by domestic abuse perpetrators. Groups supporting domestic abuse victims have voiced their support for (a) the removal of the ability to contest a divorce; and (b) the ability to divorce without having separated for a number of years.  It’s right to acknowledge that, among all of those myths being peddled in the press, there has been some good, measured reporting of no fault divorce too. Despite the sometimes misleading headlines, there is broad support in favour of the introduction of no fault divorce.  The government must now work to ensure that, despite the Brexit negotiations having been extended by 6 months this week,  legislative time is made available to implement the reforms. In the meantime, those involved in the field should work to win the hearts and minds of those who have doubts about reform; and to educate policy makers about all that is wrong about the current system and the considerable benefits of adopting what is proposed

On the day of the announcement of the government’s position, I was doing the media rounds and my brother decided that it would be helpful (ahem) to send me a running commentary of Daily Mail readers’ comments. Although it is notable that even here the mood music has changed and there is much more support for no-fault divorce than previously, perhaps we should accept that there are some we will never persuade.