No Fault Divorce

Baroness Deech

Resolution, formerly the Solicitors’ Family Law Association, is pushing hard for the introduction of no-fault divorce. This is currently understandable because of the embarrassing and avoidable litigation of Owens v Owens, where a wife who had good reasons to want to divorce her husband found that the law stood in her way. I can see arguments on both sides. But, note, we already have no fault divorce. Separation for 2 or 5 years are grounds, no reasons needed. The grounds of adultery and unreasonable behaviour are immediate, subject to procedure, but involve allegations as specified. So the essence of the demand for reform is speed.

I wrote a pamphlet more than 20 years ago when a similar proposal was on the table ( explaining why reform would, in the end, achieve little. The essence of my argument was this: repeatedly over the last 100 years reformers have told us that the law relating to the grounds of divorce has to be amended to bring it into line with reality, because behind the facade of statute, consensual decrees are being obtained without substantiating the grounds, or are being withheld contrary to common sense. When the reform campaign succeeds, the black letter law is then brought into line with practice and reality. The divorce rate rises (though now this will be tempered by the existence of fewer marriages and more cohabitation), and soon we find that divorce practice is again out of step with the law. That’s what happened with the 1937 Matrimonial Causes Act, 1969 Divorce Reform Act and 1977 Special Procedure.

Unless we are going down the talaq route, in a no-fault reform plan there must surely be some fixed time delay (6 months is proposed) between initiating the proceedings and the dissolution of the marriage, so the delay will become the new (irritating) obstacle, as it is now. Speed is everything. The adoption of no-fault divorce now would be likely to be portrayed by the media as New Quickie Divorce and would convey the impression that promises, responsibilities and children’s welfare come second to an easy end of obligations with a clear conscience. The consent of the non-initiating spouse will apparently not be required.

I say reform would bring little benefit because the real harm in the divorce process is, first, to the children (who will probably be unaware of the legal grounds, but most affected by the actual separation of their parents), and second, the ghastly state of our financial provision law. It is so expensive in legal costs that it can eat up the assets of all but the richest, and so confrontational that it makes the substantive divorce mild by comparison. That is where reform should be directed. I suggest that all that is needed by way of substantive divorce reform of the “fault” grounds, is a slowing up, e.g no decree absolute for 12 months from the service of the petition.

13 comments for “No Fault Divorce

  1. 22/09/2017 at 5:32 pm

    Cart-before-Horse, still.

    What is needed is deep and “up-enabling” reform
    beginning with progressive NVQ-type training for prospective marriage-couples and parents

    similar training for all those in “human-development” and “human-supportive” workforces

    not stopping at focal and progressive NVQ training for “relationships”, “escorts” “companions” “carers” and “sex industry workers”

    and including NVQ courses for such other human-interaction workers as Police, Medical, Nursing, Waiters/Waitresses, Shop attendants, public-transport workers, church-‘welcomers’ and so on and so forth.

    Without such essential training
    everyone falls short
    of a “Sustainworthy” personal human-ness
    and hopelessly short of developing a longest-term future Sustainworthy Human Civilisation;

    – and “No Fault” divorces and suchlike will still be only ‘scratching-the-surface’ and ‘band-aiding’.

  2. 22/09/2017 at 7:45 pm

    I don’t really see how a “no fault divorce” can not require the “consent of the non-initiating spouse”. Surely if only one party agrees with the divorce, that implies some sort of fault on the part of the other? For it to be “no fault”, both parties should have to agree with the divorce. Where the action is one-sided, the existing arrangements should suffice.

  3. maude elwes
    24/09/2017 at 2:30 pm

    Unfortunately, similarly to my friends, who married last week in Poland, I no longer have any faith in GB’s meaning of, or, lack of meaning, in marriage. And as an addendum, to requirements for this jurisdictions divorce laws. Which were ‘readjusted’ to satisfy SSM contracts on fidelity. I consider marriage an event that occurs only between a man and a woman who are devoted to the concept of sanctity within that marriage and would not consider any vows made by myself in a ceremony where those promises are considered outdated.

    Therefore, it is not proper to remark one way or another on new divorce laws here in the UK. As it no longer is a place I would wish to wed or comply with divorce. And the middle class trend in this matter is growing. So many are taking their wedding plans to countries that adhere to traditional concepts and deeply held beliefs this event implies.

  4. 27/09/2017 at 4:29 am

    maude, jonathan, the baroness
    – and those unable-to or otherwise not commenting or ‘visibly participating’ –

    There remains the both overshadowing and underlurking failure
    of both “Church and State”
    in whatever Country –
    to whole-of-body-emotions-mind and spirit
    honour and administrate
    “Holistic-Individual-and-Collective human Development”
    and therin somewhar ‘crucially’

    all as a part of the overall long-known natural-evolutionary and civilised human-development “NA-RNA-DNA Design”
    as laid out in the individually-and-collectively divinely-innate 7-fold Sacramental/Sefirotal/Chakraic/Somatopsychic guidance sources available through
    “Lifestreams” by David Boadella;
    “Analysis of the Spirit” by Caroline Myss,

    and in perhaps imminently-foundation-faculty-worthy Somatics –
    (see “Somatics” by Thoimas Hanna
    and perhaps both
    “Somatic Psychology” and “Wisdom of the Body Moving” by Linda Hartley. …

    that should be enough to show that there is also a “case” for underpinning all of that 7-foldness with a ‘notional’ “Chakra 0” being the ground one is standing on and the Earth beneath it
    and one’s initial bodily contact with that “support” –
    before proceeding up the legs to the Baptismal/Root/Grounding centre “number 1” at the tailbone and ‘rectum’ ‘and company’ –

    – before proceeding upwards to the ‘breadbasket’
    and it’s perhaps second or third sub-content namely
    the genital and procreational organs)

    – PS here maude, why didn’t you expressly mention
    “for the familial purpose of procreating and/or the raising of children” ?
    And no-one has even mentioned our need
    to seriously-practically start “co-living”
    the express distinction between “contractuals” (shackled to Law and Money) and “covenantals” ( ‘rooted-in’ and ‘founded-on’ Love and Marriage)…
    I give way –

  5. Senex
    27/09/2017 at 9:44 am

    What if a wife or husband is unsuitable? Unable to fulfil the promise of marriage. It appears some have simply to say the words “Talaq! Talaq! Talaq!” WOMAN, or should that be man, know your place.

    Ref: If your wife is useless say Talaq! Talaq! Talaq!

    • 27/09/2017 at 3:48 pm

      New “Life-Enablement” qualifications
      would do much to ‘obviate’ such “unsuitableness” obstacles

      [Lifeplace equivalent “enablements” to Workplace “NVQ skillings”]

  6. Senex
    28/09/2017 at 10:52 am

    You said “… and second, the ghastly state of our financial provision law…” Ghastly is perhaps an understatement a more appropriate word might be unlawful.

    The year is 1989; Margaret Thatcher is elected as party as leader. Being a mum she is receptive to issues surrounding the ghastly state of financial provision under the poor laws which are still in effect.

    The year is 1991 and the house is busy finalising the Child Support Act. The Labour Party is opposed to the bill and contentious issues arise in committee stage. Many of them will remain unresolved but one will become Chapter 48, Section 8: role of the courts with respect to maintenance for children. It technically creates two systems of justice or judicial jurisdictions.

    Parliament has transferred its sovereignty to a newly created public body called the ‘Child Support Agency’. Transference however is conditional and justice is only capable of being served because the Lord Chancellor sits on the Woolsack and the Lords of Appeal in Ordinary are present and able to convene a court.

    The Constitutional Reform Act 2005 renders the judicial jurisdiction of the Child Support Agency unlawful because all active Judges are removed from Parliament.

    Because Parliament had created a precedent by extending its sovereignty to a public body it could extend its sovereignty to the Supreme Court as a public body on the same basis allowing active Judges to once more convene a court within Parliament.

  7. Senex
    29/09/2017 at 3:25 pm

    The Mohammedans have evolved Talaq and it seems that such divorces are by no means quick. The question of being rich is side stepped because after who amongst us can really afford their wife.

    Their answer is if one cannot afford ones wife then divorce her.

    Having spoken with Mohammedans about wives I recall one such conversation about a wife a simple uneducated women that had come here from abroad. She was home bound, obedient and knew her place, a credit to her husband. She however came into inevitable contact with British born Muslim women who worked for a living and he said she changed. She started buying just to keep up with her friends even wanting to have a car of her own to drive. Her husband a man of modest means with three children shook his head from side to side appearing quite distraught as he spoke.

    But what if his wife had an endearing quality such as being the heiress to a small fortune and wealthy estate over here, why divorce her? Having learned the lesson why not take a second wife and one away from the UK. Indeed as far as I know this is what actually happens.

    With polygamy now established in SSM, sexual infidelity is not grounds for divorce it is reassuring to know that you oppose no fault divorces and by association are committed to monogamy.

    Ref: The Period of Waiting

    • maude elwes
      03/10/2017 at 3:23 pm

      Perhaps it is because we are no longer stable and deeply rooted in our English values. Successive governments wanted and carried out the obliteration of our culture. It is now considered to be obscene to believe in the traditions we love and stand by in heart. It is likewise considered humorous to mention Christian practice.

      The French of course knew how to rid themselves of such tyranny.

      • Senex
        05/10/2017 at 11:22 am

        Maude, regime change yes, but nobody need lose their head.

        In reaction to the Constitutional Reform Act 2005 the Lords of Appeal in Ordinary came together as a Constitutional Court. The issues affecting them were aired and the Court acted on a majority vote to leave Parliament to form the Supreme Court.

        Because Parliament had not resolved the Sovereign Jurisdiction of the public body charged with implementing the Child Support Act 1991 the decision of the Court to leave Parliament was ‘Beyond Powers’ or Ultra Vires.

        This means that a Lord Justice would need to serve as an active Judge and member of the house just to legalise the relevant section of this Act. Its section 8 would not allow a civil or criminal court to convene to dispense justice or to hold accountable the absolute power granted by Parliament to the Secretary of State for Work and Pensions.

        The Judge however could convene a constitutional court to decide whether procedural treason had taken place within Parliament. If the accused were found guilty a death sentence would apply but only if warrants signed by the sovereign had been issued.

        The Crown on compassionate grounds would no doubt be open to doing a deal where members of each house upon their own deaths would surrender their taxpayer paid estates in their entirety to the royal coffers of the Duchy of Lancaster which in turn would fund the house removing its accountability to the taxpayer. No blood need be spilt.

  8. 01/10/2017 at 4:22 am

    Instead of the God-made-Taken-Aback usual modernistic “Wow!” –

    let me just say as to the working-horse-team-of-yesteryear

    “Whoa – ”

    “What’s It All About, Alfie … ?”

  9. 07/10/2017 at 5:16 pm

    The world is in an increasingly “extinction-ensuring” blindly quicksanded sinking mode;
    still founded upon
    (i) the 5,000 years ago political and inter-civilisation mindset “regular destructive wars to ‘acquire’ surpluses”
    [see David C, Korten’s “The Great Turning – from Empire to Earth Community ]

    (ii) the 500 years old European Colonialisation Drives which also still operative.and also are dominantly benefiting the few-elite at the expense of both the Earth’s “carrying-capacity” and the World-Peoples resilience and fitness-for-Life-Purpose.
    [ see “The Divide” by Jason Hickel].

    Small wonder that nothing is “sacred” not even Marriage
    and the raising of healthy and longest-term sustain-worthy
    and sustainworthying
    Families and Communities.

    This huge underlying and overarching Fault of our Civilisation
    makes ‘No-Fault’ Divorce “a mind-functional impossibility”
    as well as a socially-inhibitive and hugely-costly material “mere band-aid”!

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