The Government’s proposed Divorce Law reform bill, which was debated yesterday in the Commons, has three strangenesses about it.
The first is that, although it has been labelled a No Fault Divorce measure, that form of divorce already exists in law – after two years, if both parties consent, and five years, without the respondent’s consent.
The Government wants to sweep away all five present grounds for divorce – two of which we refer to above – and make it automatic on a petitioner declaring that their marriage has irretrievably broken down.
This gives rise to the second oddity. The demand for justice is everywhere; see the aftermath of George Floyd’s killing. Good and evil and right and wrong are woven into the very substance of law.
So it will seem curious to some for it not to apply to how husbands and wives treat each other (or husbands and husbands or wives and wives).
Where would our soap operas be, our EastEnders and Coronation Streets, without viewers taking sides in rows between partners?
This leads to the third weirdness – namely, the falling-out of pro-marriage groups about the Government’s Bill. The Marriage Foundation is for it. The Campaign for Marriage is against.
One point should be clear at the start: fault, as decided by a court, has no bearing on the division of property or care for children. Its function is essentially declaratory.
So the fault debate is a bit of red herring. And in practice, the three fault-based grounds for divorce – adultery, unreasonable behaviour and desertion – are often manipulated simply to help speed up proceedings.
Which is why James Mackay, that pillar of Free Presbyterian rectitude who was once John Major’s Lord Chancellor, championed much the same reform in 1996 that Boris Johnson’s Government is championing now.
He claimed then as the Government claims today – via David Gauke, when he was Lord Chancellor, under Theresa May – that the main effect of the concept of fault was to further poison relations between divorcing couples.
Ironically, it was Tony Blair’s socially liberal New Labour Government that put the kibosh on Mackay’s plan. Derry Irvine, his successor, took fright at a £50 million bill attached to mediation schemes that came with the scheme.
One of the main arguments put against the Bill is that it trivialises divorce by making it available at once if only one partner wishes it to happen – and that it will spur quickie divorces that some of the couples concerned will regret.
The counter-case is that four out five divorces will actually take longer than they do now, because the Government is proposing a 20-week period between the initial petition stage and when the court grants a ‘decree nisi’.
Furthermore, the prospect of more divorces raises a which-is-the-cart-and-which-is-the-horse-question, the answer to which is obscure either way.
Are unhappy marriages like a pent-up dam, waiting to be released if the law changes, or more like a new market product – creating their own demand simply by coming available to consumers?
We can see the case for saying that the law isn’t a neutral instrument, and can help to shape fashion. So it is possible to believe that the reform will stimulate more divorces, for better or worse (and, usually, for poorer).
There is a good case for a minimum wait of a year for divorce by mutual consent, two years if contested – the system that currently applies in Scotland.
That might well be a better proposal than the Government’s. But given the choice between its plan and the status quo, the former is clearly the lesser of two evils.
But maybe those preoccupied with the Bill either way are looking at this issue through the wrong end of the telescope.
For the fact is that the divorce rate has been declining since the early noughties, and the marriage rate is bobbing along at its lowest ever.
In other words, the problem isn’t too many divorces; it’s too few marriages – at least if you believe that marriage is important for all of us, because stability at home helps to boost children’s life chances.
So if the rich marry but the poor don’t (which has been the trend during recent years), social justice will be set back in modern Britain.
There is a strict limit to what the state can do in the home, or should be. None the less, one of the complaints of some Conservative MPs when the Bill was debated yesterday was the absence of proposals to support marriage.
Robert Buckland, who as Justice Secretary led for the Government on the Bill, referred to the Troubled Families Programme, Family Hubs research and a £39 million reducing parental conflict programme.
These programmes are necessarily complex to administer, and if the Government is looking for a measure that’s a bit more straightforward, there is one to hand.
Namely, beefing up the transferable tax allowance that David Cameron introduced in 2015, which would be of real value to couples in which one member doesn’t work full-time.
This would recognise that they are not stand-alone individuals but poolers of income; help to make tax fairer between different sorts of household, and support couples who marry (or who are in civil partnerships).
Venturing wider, the simplest childcare policy is the best – namely, putting more choice in the hands of parents by restoring child tax allowances.
Or, more practicably (since the move wouldn’t help parents who don’t pay tax), rebadge universal child benefit as a family tax allowance – which it essentially is anyway.
All in all, there is sense in speeding up no fault divorce, whatever one thinks of the Government’s proposed timeframe. And there would be, too, in more support for marriage.