A dissection of divorce law reform

Divorce law reform: looking towards a broken future or rightly rectifying past shortcomings?

Assessing the fault-based system

The purgative effects of allocating accountability, and arguably allowing for justice to prevail with statutes apportioning punishment unto the guilty party, have made the fault-based system (FBS) robust in maintaining its place in statutes. However, apportioning blame may not always be possible, and the need to fulfil one of the five facts may create needless friction and fabrication.

Commentators have argued that the current law is not misleading because lawyers can explain it to their clients. However, just because statutes can be explained does not mean that the solutions they divulge in court are satisfactory for people’s lived realities.

In Trinder’s 2017 study, 78% of respondents and 62% of petitioners said that their experience of the law using fault had made the experience more bitter. Introducing a no-fault system (NFS) would quell the “blame game”. By lessening feelings of hostility and accepting that the marriage has broken down regardless of who is to “blame”, the NFS would assist reconciliation in a way that the FBS has proven not to.

The Owens judgment sparked outrage and caused discomfort in the Supreme Court at how the FBS operated. The petition failed when the fact under section 1(2)(b) MCA was insufficiently proven as passive actions are more complex to prove than their active counterparts. Lord Wilson acknowledged that in “all likelihood their marriage [had] broken down”, but the unequivocal meaning of section 1(2)(b) MCA compelled them to prevent divorce.

Trinder suggests that a fifth of undefended petitions had facts “milder than” Owens and, if uncontested, will be granted automatically. Critics called for a NFS because the law should not be a vehicle to keep couples together against their will. The Lord Chancellor’s Department previously stated that “no statute, no matter how carefully and cleverly drafted, can make two people love each other”. The FBS upholds archaic ideals of the nuclear family instead of accepting that an unhappy marriage does not benefit those within or around it.

Assessing the no fault system

Some have argued that divorce is a human right. Whilst the European Court of Human Rights has made it clear that no such right exists under the European Convention, it can be contended that states have a duty to provide effective divorce laws.

Arguably, the FBS does not effectively help couples navigate the breakdown of a marriage in contemporary society. The NFS is better suited to this goal as the provisions lessen resentment between the parties in a way that the FBS has largely failed to do when the most complex and emotionally charged cases come to court.

There is also a shift in societal views. Whilst one monogamous sexual partner has been the norm historically, that is not always true today. Therefore, relationships in all their varying degrees of commitment are becoming easier to exit – marriage is no exception. If relationships are inevitably ending, the law should do the utmost to prevent animosity. From a practical point of view, it makes divorce easier. With the digitalisation of divorce and the lasting impact of the pandemic, the reforms allow for faster applications.

Nevertheless, the DDSA has its critics. Baroness Young has stated that “the message of no fault is clear… it is that breaking marriage vows, breaking a civil contract, does not matter”, and it has been contended that a no-fault divorce system undermines the notion of commitment that is key to the nature of marriage.

There is a sense of unease amidst those who believe in the union of marriage and the benefits it bestows on society. However, divorce law regulates relationships post-breakdown, which is often too late to try and uphold the institution of marriage. Therefore, the law should operate to lessen public distress and bitterness. Failed pilot studies on the Family Law Act 1996 served as an opportunity for individuals to seek out their own goals instead of the state surreptitiously trying to bestow their own desires. Staying within an unhappy marriage from state-orchestrated pressure is being viewed as less desirable, and the DDSA uses longer time limits so parties can focus upon sustaining the relationship post-divorce if this is necessary.

The NFS under the DDSA is to be welcomed, both because of its abolition of dispensing blame and its ability to see divorce as a process. Whilst the FBS fosters hostility, the NFS helps parties move forward positively by ending the “blame game”. The DDSA should, in time, prove its rightful place in modern, dynamic and sexually liberated society.