The government’s commitment to introduce no-fault divorce legislation is welcomed, of course, by virtually everyone who works in the field of family law.
To us it is a no-brainer.
It is difficult to argue against no-fault divorce, and those who try to swiftly collapse into nonsense. The Coalition for Marriage suggests that these changes will leave the weak and vulnerable at the mercy of ruthless, bullying husbands and perhaps wives, which completely misses the point. The proposed changes will have no effect whatever on the way the law approaches the issues arising from a family breakdown, particularly financial issues, and the safeguards which are available in divorce, particularly to protect the weaker party.
Some suggest that the changes would make divorce too easy and so undermine the institution of marriage, presumably leading to social decline, with the associated ills and eventual descent into chaos. In the course of my career I have met many hundreds of separating couples, and my experience tells me that this is complete nonsense. Not one of those people asked for a divorce without thinking about it very carefully, and without being clear that their marriage has broken down. For that matter I don’t think I have met more than a handful who did not hope and expect their marriage to last for ever in the early days. So of course the breakdown of a marriage is a source of sadness, but that does not mean that the process of uncoupling has to be made unnecessary unpleasant. Divorce does not cause marriage breakdown, it is the other way round.
Those who worry for the institution of marriage, might do better to ask themselves why marriage itself is in the decline, in the sense that year on year fewer and fewer people decide to tie the knot in the first place. The government’s most recent data shows that in the mid-1970s 90% of all women, and 80% of all men were married by the age of 30. By 2016 (the latest year for which most data is available) that had dropped to less than one in three for women, and one in four for men.
Those of us who work in family law also know that the proposed changes will make very little difference in practice. They are welcome, but they are really just the last step in a process of reform which has played through in the court system already. It is correct to say that under the current law, unless you and your husband/wife have lived apart for more than two years, then to get divorced one of you will either have to say that the other has committed adultery, or they will have to list a few reasons why the other has “behaved in such a way that they cannot reasonably be expected to live together”. But these are very much a formality – in most cases involving alleged adultery one or both parties has moved on and is openly living in a new relationship, and the content of most petitions based on unreasonable behaviour is banal and uncontentious. And the so-called safe guard – that it will take at least six months for a divorce to go through the courts – is a little ironic. With the court infrastructure crumbling and staffing levels slashed, most courts would struggle to turn a divorce round in less than six months any way.
But those of us who have been around a while are not banking on these changes actually coming through, because we have been here before.
The Family Law Act 1996, was passed by Parliament in April of that year and became law. It included a bundle of really useful reforms, including protection for victims of domestic abuse, and forced marriages, and a system for no-fault divorce. But those were turbulent times and divorce, separation, and concerns about the breakdown of society were very much in the media spotlight. Charles and Diana’s very public separation and divorce were still playing out. The nation had recently been shocked by accounts from the trial of two schoolboys Robert Thompson and Jon Venables, who murdered a toddler, James Bulger, on a railway line in Liverpool. And, of course, John Major’s “back to basics” campaign, announced at the Conservative party conference in Blackpool in October 1993 appealing for traditional decency and morality, had ended in ridicule and hypocrisy, as a series of scandals involving government ministers were uncovered by the media. If you were a politician at that time divorce and separation were subjects to stay well away from.
So, although the other parts of the Family Law Act 1996 came into force and are still in use today, Part II – the part about no fault divorce – was quietly shuffled into obscurity and forgotten about.
Will it be different this time? Well let’s wait and see, but with Brexit and knife crime hogging the headlines the odds must be against it.
John Pratley is an expert divorce lawyer, who has more than 25 years experience advising clients purely about divorce and related family law issues, such as the financial consequences of separating and divorcing. After establishing the first niche family law practice in Bristol, and going on to senior management roles in a national firm, John set up Apple Tree Family Law in 2018. Apple tree family Law solicitors specialise in advice about divorce and financial issues.
We are based in Bristol and Exeter, but we have clients all over the UK and further afield. We offer, simply, clear and accurate advice about divorce and family law issues, and the very best client service, for a clear and reasonable price.
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