There’s a lot of divorce about this week and it’s not all to do with Brexit. Britain’s forty-six year marriage to Europe may be ending in an unhappy parting of the ways and a divorce process that could perhaps charitably be described as ‘extended’. But other, more conventional marriage breakdowns also involve unnecessary acrimony and long and painful divorces. Or that, at least, is the view of those who have been campaigning for years for more liberal divorce laws. This week, the Justice Secretary, David Gauke, when not touring the studios trying to defend the government’s current Brexit posture, has responded, announcing the government will reform the law in three months’ time. Are his proposals sensible and humane, as their advocates claim? Or will they, as his critics argue, ‘undermine the institution of marriage’ by creating ‘divorced on demand’?
Many people imagine that in the sexually-liberated world we have lived in since the 1960s, divorce rates have shot up and continue to do so. In fact it’s not the case. Last year there were around 110,000 opposite-sex married couples (and a few hundred same-sex couples) who got divorced, the lowest number for forty-five years. Some would attribute this to the simple fact that fewer people get married in the first place, as living together unmarried no longer carries the social stigma that used to be associated with it. But others think one of the reasons for this relatively low rate of divorce is that the process is too difficult and unpleasant, so couples who might prefer to divorce have stayed in unhappy marriages instead. That’s why campaigners have sought reform.
Under the current law, the Matrimonial Causes Act of 1973 (the year Britain got married to Europe), there are five ways for a couple to be divorced. If they both agree they want to, they can be divorced after two years of starting the process; if only one of them wants it, then the other has to wait five years unless he or she can demonstrate that the other’s behaviour has led to an irretrievable breakdown in the marriage. This brings in the other three ways of achieving divorce and all three involve the concept of fault. Someone seeking a divorce can succeed if it can be proved that the spouse is guilty of adultery, desertion or unreasonable behaviour.
Critics of the current law focus on two aspects: the fact that someone might have to wait five years to end an unhappy marriage (I’ll resist the possible Brexit analogy here), and that many divorces require one or other partner to be at fault for the process to be expedited.
The most celebrated recent case of the first was that of Tini Owens, a 68-year-old woman married for forty years to Hugh Owens, 80. She claimed she was trapped in a loveless marriage which she wanted to end but her husband wanted the marriage to continue. She took her case as far as the Supreme Court. The court ruled against her ‘with great reluctance’ last year on the grounds that she had failed to demonstrate that their marriage had irretrievably broken down as a result of his unreasonable behaviour. So she was left having to wait another five years before she could divorce him. In expressing its regret at its own decision, the Supreme Court effectively lobbed the ball into Parliament’s court, saying it was simply upholding the law as it stood and that Parliament should look at changing it.
Sir Paul Coleridge, a former high court family judge and founder of the Marriage Foundation, said: ‘The current law does not prevent people from getting divorced; it just keeps them in marriages they do not want to be in.’
On the question of fault, campaigners for reform argue that by making the establishment of fault so central to the divorce process, the current law increases the level of conflict already high enough in a failing marriage, reduces the chances of reconciliation and undermines the scope for amicably co-parenting a couple’s children after the divorce. Aidan Jones, the chief executive of the marriage guidance charity, Relate, said: ‘The fault-based system led parting couples to apportion blame, often making it harder for ex-partners to develop positive relationships as co-parents’
The government has accepted both criticisms. It proposes to do away with the need to establish fault as a criterion for divorce, and it wants the assertion of the irretrievable breakdown of a marriage by just one in the couple to be sufficient for divorce proceedings to be begun. In future a spouse who does not want a divorce (like Hugh Owens) will be unable to resist it if the other half declares an irretrievable breakdown. Divorce proceedings could then be completed within six months rather than five years.
Mr Gauke said: ‘Hostility and conflict between parents leave their mark on children and can damage their life chances. While we will always uphold the institution of marriage, it cannot be right that our outdated law creates or increases conflict between divorcing couples. I have listened to calls for reform and firmly believe now is the right time to end this unnecessary blame game for good’.
But the suggested reforms have been criticised, especially in relation to the change that will prevent someone who does not wish to be divorced from blocking it. Simon Calvert of the Christian Institute think-tank said: ‘The Government is going to make divorce easier so sadly, 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. This will increase the insecurity that many people feel within their marriages, since it will mean that one partner can simply resign from the marriage, leaving the other partner little time or opportunity to rescue it.’
So is this proposed change a good idea or not? Is the current law too restrictive, or is it necessarily so in order for marriage to remain a serious business? Is the need to demonstrate fault in one party to the divorce justifiable, or does it cause unnecessary extra conflict in an already conflicted situation, with knock-on harm to any children involved? And should someone be able to end a marriage in six months even if their other half wants the opportunity to try to make the marriage work?
(And what, if anything, does the proposed easing of divorce laws suggest as to how Britain might finally extricate itself from the EU?)
Let us know your views.