Jo Edwards is a Partner and Head of Family at London law firm Forsters LLP, and former Chair of Resolution, the national family lawyers’ organisation.
Last week, the Office for National Statistics published the 2016 divorce numbers for England and Wales. Whilst headlines focused on a 5.8 per cent increase in divorces year-on-year to 106,959 (in fact, the trend over time continuing to be downwards), few took notice of the reasons cited for the breakdown of those marriages.
Typically, around two-thirds of divorces are based on unreasonable behaviour or adultery, the so-called “fault-based” grounds, which has been true since the 1970s. The non-fault based grounds – two years’ separation where both parties agree, five years where only one consents – make up most of the remaining third (with the fifth ground, desertion, rare).
There is a growing groundswell of opinion that it is time that the law changed so that fault-based divorce isn’t the norm. Baroness Hale, the new President of the Supreme Court, Sir James Munby, the President of the Family Division, andSir Paul Coleridge, a retired High Court judge who founded the Marriage Foundation, are among high-profile supporters of change. Resolution, of which I am immediate past Chair, has campaigned on the issue for many years, most recently including it in its 2015 Manifesto. Much has been written about Mrs Owens, who has not been able to prove that her husband’s behaviour has been so bad as to meet the legal test and remains locked in an unhappy marriage (the Supreme Court now likely to look at her case next May).
So, what is the case for change? And why has it been so hard to persuade policy makers?
One reason for change is that the need to apportion blame creates conflict from the get-go and makes reaching agreement on other aspects (children arrangements and money) more difficult. This can fuel conflict between parents, which can have effects on children worse than separation itself.
The requirement to assign blame can also undermine attempts to resolve disputes in mediation. It is the Government’s policy aim to divert separating couples from court. In my mediations, most couples are ignorant of the need to apportion blame, having just drifted apart. Invariably, the temperature rises when I explain that one of them has to apportion blame and often the resulting acrimony can end the process.
There are other changes which make reform pressing. One is the huge rise in self-representing litigants since the legal aid cuts in 2013. The proportion of cases where neither party is represented is now almost 40 per cent, a doubling of the total. How is someone without representation to know how to complete a fault petition? And how is an unrepresented respondent to know they don’t have to defend it? People’s instinct is to defend themselves and this necessitates a hearing and further burden on the system. The digitisation of the divorce process adds even more impetus to the calls for change.
So why hasn’t the law changed? In 1996, no-fault divorce was on the statute books. The law would have introduced a 12-month period of consideration and reflection, during which the couple would be referred to counselling. It fell by the wayside as it was felt that not enough people were reconciling, in truth never the primary purpose of the intended legislation. More recently, Richard Bacon MP introduced a Private Member’s Bill which would have added a sixth ground, mutual consent, to the existing five. It did not make it past first reading stage.
Of the arguments I have heard against reform, these are the most common:
1. It will lead to an increase in the divorce rate. Academics have shown that this is not the experience of countries where no-fault divorce has been introduced. Instead, the trend is a short-term increase in the divorce rate (as people wait for the new legislation) and then a return to previous levels.
2. Divorce should be hard, to disincentivise people. Really? The fact that most are ignorant of the law at present shows that this does not drive their decision-making. Second, few people treat their marriages as disposable; they reflect carefully before making a final decision. Third, is it the place of the state to keep people trapped in unhappy (sometimes abusive) marriages, unable to access financial remedies until they have proven the breakdown of the marriage?
3. We have no-fault divorce already – two years’ separation. But few people want to wait for two years’ separation, particularly where the decision to divorce is mutual. No divorce is speedy – fault-based divorces take 5-6 months even if undefended – but forcing people to stay together for two years (even then, assuming mutual consent) is paternalistic and wrong.
So, what is the answer?
Many advocate scrapping the current grounds, to be replaced by the giving of notice by one/both spouses and finalisation of the divorce after six months. Some say, “but why shouldn’t people who feel aggrieved be able to apportion blame in the petition?”. But that is for couples’ counselling. The petition makes no difference to the financial/children outcome. I have seen the longer-term discord which bitterly fought divorce proceedings can cause. And marriage breakdown is more nuanced and rarely the fault of one person alone. Others argue that, whilst this suggestion may work where the decision is mutual, it would be unfair where only one party wishes to terminate the marriage.
A second option is Bacon’s, adding a mutual consent ground. Whilst this would be better than at present, it would leave too many who may have decided unilaterally with good reason that they wish to end the marriage, e.g. in cases of abuse, having to grapple with the other grounds.
A third option is to reduce the separation periods. This has made a significant difference in Scotland where, in 2015/2016, 68 per cent of divorces were based on two years’ separation, 26 per cent on one year’s separation with consent, and only five per cent on behaviour (one percentage point of which was based on adultery). But direct comparisons, in gauging whether such a scheme would have as much success south of the border, is difficult in light of the significant differences in the two systems.
Reform is long overdue and now pressing. The key is persuading policy-makers that this not about making divorce easy and marriage disposable. It is about making it kinder for the 100,000 or so couples who divorce each year and, arguably more important, the 225,000 or so children of those couples.