A Conservative's Case for No-Fault Divorce
David Gauke, the Lord Chancellor, recently announced a consultation on divorce law reform which, if successful, could lead to the introduction of no-fault divorce.
To get divorced in England & Wales under the current law, a spouse must prove that their marriage has “irretrievably broken down” on the basis of one or more statutory factors: adultery, 2 years’ separation by consent, 5 years’ separation, desertion, and unreasonable behaviour. No fault divorce abolishes these requirements. This means a husband or wife could unilaterally split from their partner.
Conservatives are instinctively wary of no-fault divorce. Our Burkean affection for the proven, solid, and organic institution of traditional marriage means we recoil from the novel, theoretical innovation of no-fault divorce.
But our justified reverence for tradition should not blind us to the flaws of current divorce law. Ushering in no-fault divorce would a triumph for decency, common sense, and necessary reform, dampening divorce’s ferocity, mitigating its harshness, and obliterating some of the most squalid, sordid, and sadistic cruelties inflicted by one party on another in an English court of law.
Marriage exists for children. By and large, the typical marital home is uncontestably the best environment to raise children in – so Church and State solemnise the marriage bond, enforcing it in law and religion. The fury of contested divorce – with inquisitorial legal battles and rancorous proceedings – stems from parties flinging blame at each other to prove fault. But what of the children? What do they see? What do they feel when their formative years are spent watching their parents alternately ignoring and screaming at each other? No-fault divorce would soften the hideous blow that divorce inflicts on children.
In an article for Conservative Home, Joe Robertson argued that divorce’s wrath comes from the more contentious settlement proceedings when the divorced couple allocate child custody, financial resources, and assets. This may be. But the initial mud-flinging – an inseverable component of fault-based divorce – hardly sets a civil tone for such proceedings.
Lurking beneath this debate is the understandable fear that no-fault divorce may make divorce easier, undermining the sanctity of marriage. This is a sensible concern. Couples may comfortably slide into marriage, safe in the knowledge that divorcing if things don’t work out is easy-peasy; perhaps they might divorce at the first sign of trouble, rather than saving their relationship.
But the evidence shows that this argument is untrue. In the United States, one massive study shows that no-fault divorce has no impact whatsoever on divorce incidence in any of the States where it was implemented.
This cannot be stressed enough: no-fault divorce does not increase divorce rates. The emperor simply has no clothes. If these fears are as unfounded as all available evidence suggests, the conclusion becomes irresistible: we must introduce no-fault divorce.
Lastly, the current divorce regime is propped up by a cold spine of inhumanity. Suppose a couple wanted to split up, but none of the requisite statutory facts could not be demonstrated in contested divorce proceedings. What then? Following the Supreme Court’s judgment in Owens v Owens, they would be required to stay together until one of the factors could be met. This is inhumane. Merely because one of five arbitrarily-chosen, undefined criteria could not be proven, the distant couple would be shackled to a loveless relationship.
The family is the fundamental social unit – the impregnable nucleus of society, upon which the entire edifice of the wider community is built – and enforcing such a bleak relationship is to make a mockery of marriage, devaluing it as an institution. The law’s unjustifiable indifference to this is wrong.
Let our great movement never forget that our finest days have dawned when we have stood firmly for the liberties of men, women, and children. Let us not forget Wilberforce’s crusade for the abolition of the slave trade, or Shaftesbury’s unceasing efforts to outlaw child labour. Fault-based divorce – with its coldness, and purposeless barbarity – should stir us to the same swift action.
James Smith is a Law student at the University of Warwick.