A group of lawyers wants the new Parliament to legislate for total no-fault divorce.
The idea was floated years ago, in John Major’s ill-fated Family Law Act 1996. Despite that, it was never implemented.
Divorce on ‘Irretrievable breakdown’
Many people do not know there is only one legal ground for divorce. It is that the marriage has ‘irretrievably broken down’.
The person who starts proceedings, (called the Petitioner) must prove that by establishing one of the following five facts. Only the first three involve fault:
Adultery
Unreasonable behaviour
Desertion
2 years separation with consent
5 years separation (no consent required)
Now family law solicitor Nigel Shepherd wants to eliminate fault altogether. He chairs a group of around 6,500 other lawyers called Resolution. It claims to be committed to the ‘constructive resolution of family disputes’ . Their Code of Practice ‘promotes a non-confrontational approach to family problems’.
Marriage reduced to boyfriend / girlfriend status
So Mr Shepherd has written to MPs urging his no-fault idea be placed in party manifestos. In his letter, Mr Shepherd says, ‘current divorce law does not encourage couples to divorce amicably’. He complains that ‘people often have to cite unreasonable behaviour or adultery on the divorce petition’.
He claims this situation leads to unnecessary conflict and makes an amicable separation less likely. It also reduces the chances of reaching agreement on children and financial issues, he says.
But there is a downside. The ‘Resolution’ idea reduces marriage to no more than a boyfriend / girlfriend relationship.
Of course, many would argue it’s there already. ‘Unreasonable behaviour’ is ‘no-fault’ in all but name. Virtually anything will do in an ‘unreasonable behaviour’ petition. no matter how subjective. Parties often agree such a petition together.
Moreover, it is pie in the sky to believe that just by taking the fault-based facts out everything will suddenly be decided ‘amicably’. Divorce hurts. People are bitter about it. That is the reality of breaking a covenant.
Will justice be done?
There is even another aspect to all this. Will the proposals help justice to be done? Indeed, is justice being done at the moment? Pleading for anyone righteous in Sodom, Abraham said to God:
Genesis 18:25 That be far from thee to do after this manner, to slay the righteous with the wicked: and that the righteous should be as the wicked, that be far from thee: Shall not the Judge of all the earth do right?
Suppose a party has deserted the other, or committed adultery. Suppose they have withdrawn what the Bible calls ‘due benevolence’. Perhaps they have acted with cruelty, or otherwise by their conduct repudiated their marriage covenant. Is it right and just for there to be a ‘no-fault’ settlement of property and children in such a case?
And remember that ‘Resolution’ is talking about ‘conciliation’, not about ‘reconciliation’. More effort coupled with incentives should go into keeping people together. Let us say society accepts ‘no-fault’ divorce. In that case, can we not realise that divorce costs in parties’ mental health and achievement, in children’s outcomes and in additional pressures on our housing stock? Divorce should be prevented if possible. A serious attempt at reconciliation should at least be tried.
This probably won’t be addressed in party manifestos, but letting marriages be dissolved so easily as they are is a bigger problem facing society than Resolution would care to admit. And we hate to say it, but fewer divorces would mean fewer fees for lawyers
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That’s funny, I thought we had no-fault divorce already.
It’s many years since I came across professional co-respondents in Brighton hotels.
I have misgivings about your approach. (Sidney may have misgivings about mine, mind you.)
Does God want us to campaign for an official status quo, honoured more in the breach than in the undertaking, that compels treacherous, apostate spouses, to have to continue making false “behaviour” allegations of fault as they have done for the past half-century or so? By filing petitions alleging excessive saintliness?
If, that is, they are determined, by hook or by crook, to divorce their innocent, still-Christian spouses?
Why would God want us to campaign for such a status quo? Are we to expect secular courts to be competent to find fault, or no fault, merely because they have the “Dieu et mon droit” logo, and the queen took some sort of oath 64 years ago, the year I was born? Is that it???
Should a pastor assume that it had been a finding of fault on the part of a congregant of his who claimed to have been a righteous spouse, that a court ruled that his or her behaviour has been such that it was not reasonable to expect his or her unrighteous spouse (he says) to continue to live with her or him? Why?
I have a kettle here whose behaviour is such that it is not reasonable for me to expect the water in it not to boil when I switch the kettle on. That is not a finding of fault, though, on the part of the kettle, or the water that it boils.
I was divorced in 1995, after a behaviour petition that accused me of being a fanatical evangelical Christian, whose behaviour included praying too much. Had even that been true, I might have had a happier life, since then.
Are you not striving to shut the stable door after the horse has bolted? Family court judges nowadays are bad enough at finding what is best for children, which is important. I wouldn’t trust them as far as I can throw ’em, also to decide who if anyone was at fault in bringing about an irretrievable breakdown of a marriage. Would you? Some of these judges wouldn’t recognise an injustice if it jumped up and bit them on the nose.
I never said this was a good place to be starting from!