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 http://www.familylawweek.co.uk/site.aspx?i=ed176790, 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 (https://www.cps.org.uk/files/reports/original/111027154111-DivorceDissent1994.pdf) 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.