You are on page 1of 25


Citation: 26 Legal Stud. 267 2006

Content downloaded/printed from

HeinOnline (
Wed Oct 14 03:41:08 2015
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:

Legal Studies, Vol. 26 No. 2, June 2006, pp. 267-290

DOI: 10.1111/j.1748-121X.2006.0001 1.x

Wedded to 'fault': the legal regulation

of divorce and relationship breakdown
Dr Ezra Hasson
Universit) of Nottingham
In December 2005, the Civil Partnership Act 2004 came intoforce, thereby enabling samesex couples to obtain formal legal recognition of their relationships. By modelling the
provisions for dissolving such partnerships on divorce lasw, the government effectively
transposed into the new regime both a fault-based 'system' and the accompanying sense
that the law is vested with a role beyond that of simply ending relationships. In view of the
recent, but ultimately failed, attempt to introduce no-fault divorce, this paper explores the
role of law in this context. Drawing on a series of interviews with key individuals imolved
in the reform process, it explores how no-fault divorce was hijacked in a vain effort to provide simultaneous means of saving and ending marriage. In particular the veto wielded
by an influential group of idealistic conservatives during the latter stages ofthe reform process is identified. Given the inability or unwillingness of reformers to confront such conservatism with either a thoroughgoing defence of diversity, or the reality of the limited
capacity of states to legislate for morality, the paper calls for a re-evaluation of the law's
role. It questions whether the Civil Partnership Act 2004 represents a missed opportunity_
to conduct such a re-evaluation and thus to point the way for future divorce reform.


ACT 1996
It was during the late 1980s that the nettle of divorce law reform was, once again,
grasped by policy makers. The ensuing reform process ultimately culminated in the
enactment of the Family Law Act 1996 (the 1996 Act). This Act represented an
interesting development in the history of English divorce law for several reasons. In
one sense it was unique, in that it constituted the first government-sponsored reform
of the law since 1857. In addition, it also provided for two fundamental changes to
divorce law.' First, and centrally for the present discussion, the 1996 Act provided
for a no-fault divorce process. While the ground for obtaining a divorce remained the
irretrievable breakdown of marriage, it would no longer be necessary to provide
reasons for it. Instead, marital breakdown was now to be evidenced by a waiting
period for reflection and consideration. The second major change made by the 1996
S Day Sclater and C Piper 'The Family Law Act in context' in S Day Sclater and C Piper
(eds) Undercurrents of Divorce (Aldershot: Ashgate, 1999) pp 3-29 at p 5.
The Family Law Act 1996 provided that the process of divorce was now to be initiated
by either or both parties to a marriage, at least 3 months after attending an 'information
meeting', simply filing a statement to the effect that their marriage had irretrievably broken
down. This filing was to be followed by a 9-month period for 'reflection and consideration'
(increased to 15 months if there were children of the family aged under 16 or the other party
applied for an extension), at the end of which either party would then be entitled to apply for
a divorce order on the basis that the marriage breakdown was now irretrievable.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars. Published by Blackwell Publishing,
9600 Garsington Road, Oxford OX4 2DQ. UK and 350 Main Street. Malden, lA 02148, USA


Legal Studies, Vol 26 issue 2

Act was an attempt to encourage mediation rather than lawyers as the preferred
method of resolving disputes.
The 1996 Act has been described as introducing a 'revolutionary mechanism' for
obtaining a divorce. 3 It is certainly true that since its emergence as ajudicial procedure
in 1857, 4 English divorce law has been characterised by its reliance on the concept
of matrimonial fault. Indeed, for over 100 years following its introduction, fault
provided the sole basis for obtaining a civil divorce.5 The fault doctrine has witnessed
a degree of erosion in the sense that, since 1971, the divorce regime has allowed for
the possibility of no-fault divorce. 6 Nevertheless, and despite the hopes that no-fault
divorce would become the norm, fault has continued to occupy a central position
within the process. Indeed, when faced with the choice, a majority of couples has
continued to opt for what is the quicker, fault-based route to divorce. 7
This no-fault process was, however, placed very firmly within what might be
described as a less than revolutionary 'pro-marriage' context.8 Initially, the tone of
the 1996 Act was established by the set of general principles contained in s 1, which
spelt out the framework within which all those using the 1996 Act were required to
operate. This framework included both that 'the institution of marriage' was to be
'supported' and that, where a marriage 'may' have broken down, the parties were to

J Eekelaar, M Maclean and S Beinart Family Lawyers. The Divorce Work of Solicitors

(Oxford: Hart Publishing, 2000) p 1.

4. The Matrimonial Causes Act 1857 effectively heralded the advent of secular divorce; see,
for example, S Wolfram In-Laws and Outlaws. Kinship and Marriage in England (London:

Croom Helm, 1987); CS Gibson Dissolving Wedlock (London: Routledge, 1994). Prior to 1857,
divorces were effected by Private Acts of Parliament, principally for the benefit of the wealthy
few. In addition, ecclesiastical courts were able to grant separation 'from bed and board'
(divorce a mensa et thoro) on proof of either adultery or extreme cruelty. This did not, however,
constitute an absolute divorce in that, although relieved from the obligation to live together,
the marriage tie between spouses remained. The Matrimonial Causes Act 1857 consolidated
these matrimonial jurisdictions and transferred them across to a civil court of law. The matrimonial jurisdiction of the ecclesiastical courts was thus abolished and effectively re-created in
a new 'Court for Divorce and Matrimonial Causes'.
5. The Matrimonial Causes Act 1857 provided for divorce by a husband on the grounds of
his wife's adultery. A wife seeking divorce required her husband's adultery to be aggravated
by incest, bigamy, rape, sodomy, bestiality, cruelty or desertion. The Matrimonial Causes Act
of 1937 subsequently expanded the grounds for divorce to include desertion and cruelty, and
equalised the position of husbands and wives.
6. The Divorce Reform Act 1969 came into force on 1 January 1971. It was subsequently
consolidated into the Matrimonial Causes Act 1973, which remains in force to date. Section
1(1) provides that the sole ground for obtaining a divorce is that a marriage has 'broken down
irretrievably'. A court can only hold that such a breakdown has in fact taken place on proof of
one of the five facts contained in s 1(2). These facts embrace instances of fault - adultery, that
one party has behaved in such a way that the other cannot reasonably be expected to live with
him or her, and desertion - and the no-fault situations of 2 years' separation, where the parties
agree on divorce, and 5 years' simple separation.
7. See, for example, the government's 1995 White Paper, in which it was noted that
'about 75%' of divorce petitions were based on either adultery or intolerable behaviour: Lord
Chancellor's Department Looking to the Future. Mediation and the Ground for Divorce Cm

2799, 1995, para 2.4.

8. E Hasson 'Setting a standard or reflecting reality? The "role" of divorce law, and the case
of the Family Law Act 1996' (2003) 17(3) International Journal of Law, Policy and the Family
338 at 340.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars

Wedded to 'fault'


be 'encouraged to take all practicable steps' in order to save it.9 These basic principles
were accorded practical substance by the incorporation of a series of procedural steps
into the divorce process that were designed to encourage couples to stay together.'l
The 1996 Act might, thus, be said to have two 'critical purposes': to support the
institution of marriage and, where all attempts to 'save' a marriage had failed, to bring
it to an end with 'minimum distress' to the parties and any children involved." These
two purposes reveal the presence of a basic dilemma that resides at the centre of much
English family policy - namely whether policy is about families as they are or is,
instead, about families as 'we' (or at least the legislators) would like them to be.
When faced with this dilemma, the tendency to cling to the notion that law and policy
should somehow adhere to traditional family models has proved to be an enduring
one. Indeed, it has been suggested that since the 1990s we have actually been
witnessing a resurgence in this respect, as social policy relating to family becomes
'increasingly preoccupied with issues of moral regulation ... and less concerned with
familv policies which "support family life" '.2 Rather than supporting the diversity
of the modem family experience, policy is, thus, categorised as progressively more
concerned with orchestrating or policing it.
Within the divorce context, the nature of this policy dilemma crystallises around
the issue of whether the law is about dealing with the 'reality' of bringing marriages
to an end or should instead be concentrating on the 'ideal' in the sense of supporting
marriage. Is the law simply about ending marriages or does it have some kind of
wider role? Of course, this dilemma is not new in that divorce law has long struggled
to negotiate the line between bolstering and ending marriage. For example, in 1966,
the Law Commission described the objectives of 'good' divorce law as including both
'the support of marriages which have a chance of survival' and 'the decent burial...
of those that are indubitably dead'." 3 Nevertheless, it was notable that the 1996
Act - enacted towards the turn of the century and against the backdrop of an increasingly diverse society - brought the idea of divorce law possessing a role beyond that
of simply bringing marriages to an end so explicitly to the fore.
This wider role for law was not, however, always so explicitly present within the
reform proposals. Indeed, the 1996 Act effectively began life as a set of recommendations from the Law Commission that were intended, primarily, to bring marriages
to an end with minimum hostility, humiliation and bitterness. 4 The scheme originally
proposed by the Commission was a relatively straightforward one, with the irretrievable breakdown of marriage established by the simple expiry of a minimum period
of 1 year. The purpose of this waiting period was, principally, to allow the parties to
9. Family Law Act 1996, s 1(a) and (b).
10. Such steps included the requirement to attend an information meeting at which individuals would be encouraged to meet with a marriage counsellor; a waiting period of 'reflection
and consideration', which, it was hoped, would enable couples to both address what might
have gone wrong in their marriage and explore the possibilities of reconciliation; and the
encouragement of mediation, which was felt to have the potential to assist positively in saving
11. Lord Irvine of Lairg, The Lord Chancellor, Speech for the closing session of the Fourth
European Conference on Family Law (Strasbourg, 2 October 1998).
12. J Roger 'Family policy or moral regulation?' (1995) 15(1) Critical Social Policy 5 at 7.
13. The Law Commission Reform of the Grounds for Divorce. The Field of Choice Cmnd
3123, 1966, para 120(1).
14. The Law Commission Family Law. The Groundfor Divorce Law Coin No 192 (HMSO,
1990) paras 3.1-3.2.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholar


Legal Studies, Vol 26 issue 2

consider the practical consequences of divorce and to enable them to reflect on

whether the breakdown was really irreparable."
The Conunission's scheme attracted the support of a range of groups and organisations with an interest in divorce law and practice. Indeed, when originally put out
for discussion and consultation, it had been endorsed by all those lawyers' organisations who responded. Support also came from the main professional groups concerned
with helping those families experiencing the problems of marital breakdown and
separation, the two principal self-help groups for divorced and separated parents Gingerbread and One-Parent Families - several of the major children's charities and
a number of religious bodies. 6 Yet, despite this apparently broad-based support for a
simple no-fault framework, proceedings began to take on a stronger regulatory tone
once the reform process entered the political arena. In 1993, the government assumed
a direct role in the determination of policy with the publication of its Green Paper. 7
This sought to canvass opinion on the Law Commission's recommendations and
was followed, in April 1995, by a White Paper containing the government's formal
proposals for reform; 8 a point which has been identified as the beginning of a real
shift away from the broadly consensual position of the early 1990s. Indeed, rather
than providing a simple scheme for ending marriages along the lines suggested by
the Law Commission, much of the emphasis was now placed on the need to both
support marriage and promote reconciliation wherever possible.' 9 As the Lord
Chancellor, Lord Mackay, stated in his foreword, a 'heavy responsibility' exists 'to
ensure that our law recognises the importance of the institution of marriage'.
This shift in the role accorded to divorce law was further underlined by the
government's subsequent introduction of its Family Law Bill into the House of Lords
on 16 November 1995. As Lewis observes, it was at this point that the concern about
marriage really came to the fore. 2 ' For example, during the Bill's second reading in
the Lords, the Lord Chancellor remarked how the debate had been 'as much about

15. Ibid. at para 3.35.

16. Ibid, at para 3.28. In 1988, the Law Commission had produced a discussion paper: Facing
the Future.A Discussion Paperon the Groundfor Divorce Law Com No 170, HC 479 (HMSO,
1988). This outlined a number of 'problems' with regards to existing law, including that the
retention of fault within the divorce process generated hostility and made the process more
painful for all of those involved. Current law was also criticised for its failure to recognise that
divorce was not 'a final product but part of a massive transition for the parties and their children'
(para 3.50). It was the Commission's view that this transition should be as smooth as possible,
and with this in mind a number of possible options for reform were reviewed. Two proposals
ultimately emerged as the 'most realistic': namely divorce following a period of separation,
and divorce after a period of transition in which parties would be given time and encouragement
to reflect and to make arrangements for the future (para 6.3). Having considered these two
options, the discussion paper put forward a scheme that was based upon the latter. Comments
on and responses to the scheme were then invited. Appendix B of the Commission's 1990 paper
(see n 14 above) contains full details of all those organisations and individuals who responded
to the discussion paper.
17. Lord Chancellor's Department Looking to the Future. Mediation and the Ground for
Divorce Cm 2424, 1993.
18. Lord Chancellor's Department, above n 7.
19. S Cretney Family Law in the Twentieth Century: A Historv (Oxford: Oxford University
Press, 2003) p 388.
20. Lord Chancellor's Department, above n 7, p iv.
21. J Lewis 'Marriage saving revisited' [1996] Fam Law 423 at 423.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars

Wedded to 'fault'


marriage as ... about the finer details of the divorce system' .22 Indeed, by the time
the Bill reached Standing Committee in the House of Commons in April 1996, both
Conservative and Labour MPs were calling for it to give more explicit support to
marriage. 2' The end result of what had started with the search for a more amicable
and efficient means of bringing marriages to an end, thus culminated in legislation
that sought to provide simultaneous means of saving and ending marriage. These dual
aims were to be achieved through the imposition of a complex legal framework that
sought to buttress marriage through the promotion of reconciliation and marriage
It might be argued that the no-fault aspect of the 1996 Act can be described as
supportive of family life in the sense that it demonstrates a basic willingness to engage
with the reality of relationship breakdown. Certainly, the removal of fault reflects a
movement away from the construction of divorce as something to be deterred and
punished. However, despite both this apparently sympathetic perspective and the
degree of support accorded to simple no-fault divorce, questions remain as to why
the 1996 Act ultimately provided for a divorce law that was largely preoccupied with
coercing couples into adhering to the traditional family model. Indeed, the arrangements for no-fault divorce were positively employed in an attempt to save marriages.24
In order to answer these questions, this paper will explore the debates that
surrounded the formulation of the 1996 Act. In so doing, it draws upon a series of
qualitative interviews, conducted with 15 key individuals who were influential in the
process that culminated in the 1996 Act. These individuals were drawn from within
the formal state apparatus - thus including politicians, employees of government
departments and a government minister - and from various organisations involved in
consultation and lobbying. The sample of policy makers was compiled through
snowballing, with each interviewee asked to suggest further individuals for inclusion
in the study. Inevitably, the representativeness of any sample conducted in this way
depends upon the extent to which all of those individuals who should be studied
happen to exist within a complete social network. 25' The potential always exists for
the opinions of those who do not form part of that network to be omitted. However,
as the study progressed, a 'core' of names was repeatedly suggested for inclusion.
Access was subsequently gained to the majority of those individuals. It also became
evident that, in addition to those actors occupying positions within the formal state
apparatus, a range of relatively defined 'interest groups' or 'constituencies' were
influencing the policy process; examples included lawyers, mediators, 'marriage
support' organisations and groups representing and working with children. Steps
were, therefore, taken to ensure that representatives from each such group were
incorporated into the study. Ultimately, the sample thus included the majority of the
'key' actors in the reform process and was also broadly representative of the 'makeup' of the national policy-making community.
The paper will then turn to consider the Civil Partnership Act 2004 (the 2004 Act),
which came into force on 5 December 2005. With marriage in England remaining

22. HansardHL Deb, vol 567, col 700, 30 November 1995.

23. Lewis, above n 21.
24. J Lewis The End of Marriage? Individualism and Intimate Relationships (Cheltenham:
Edward Elgar, 2001) p 117.
25. RG Burgess In the Field: An Introduction to Field Research (London: Allen and Unwin,
1984) p 57.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars


Legal Studies, Vol 26 issue 2

confined to heterosexual couples,'26 the 2004 Act enables same-sex couples to obtain
formal legal recognition of their relationship. This can be achieved by registering as
the civil partners of each other. Once the relationship has been registered, the parties
are then accorded a quasi-marital status.27 One aspect of that status can be found in
the provisions for dissolving civil partnerships, which are closely modelled on the
current divorce regime. Yet, this model was imposed against the background of a
reform process that had uncovered a very real dissatisfaction with the state of the
divorce regime. In light of the lessons that emerge from the 1996 Act reform process,
the paper therefore goes on to question whether the 2004 Act represents a missed
opportunity to re-evaluate the role of the law when intimate relationships break down.
No-fault divorce
Perhaps unsurprisingly, the study revealed a national policy-making community that
spanned a relatively wide spectrum of opinion. Nevertheless, despite this apparent
divergence of views, it was marked how the vast majority of study participants
strongly favoured the introduction of a no-fault framework. Somewhat inevitably, the
reasons for supporting no-fault divorce did display a degree of variance. For example,
several participants emphasised the redundant nature of the fault concept. While
recognising that fault might once have possessed the capacity to act as a deterrent to
divorce, in modem society it was charged with actually having the perverse incentive
of providing a speedier route to its achievement. Fault was also not thought to
'advance' the situation, in the sense that it generally had no effect on the way in which
disputes about children and finances were dealt with. 8 Added to that, participants
regarded the fault concept as meaningless in that it both reflected the reality of normal
married life, rather than some kind of exceptional circumstance going to the root of
a marriage, and tended to become a fiction employed by the parties in order to secure
a divorce.29

26. Matrimonial Causes Act 1973, s 11 (c) provides that a marriage is void if the parties are
not respectively male and female. The Gender Recognition Act 2004 now allows adults (so
long as certain requirements are met) to be legally recognised, and thus to marry in an acquired
gender. English law does not, however, accept that same-sex relationships can constitute a legal
27. L Glennon 'Displacing the "conjugal family" in legal policy - a progressive move?'
[2005] CFLQ 141 at 142. Glennon notes that, upon registration, the 2004 Act includes a duty
to provide reasonable maintenance for civil partners and any children of the family; assessment
for child support in the same way as parents; joint treatment for income-related benefits and
state pensions; recognition for immigration purposes; arrangements for the division of property
on the dissolution of the partnership; the right to register the death of one's partner; treatment
in the same way as spouses for tax purposes, and for inheritance, intestacy and compensation
rights (at 142, n 6).
28. Representative of solicitors' organisation.
29. This perception reflects the findings of Davis and Murch, who conducted interviews with
over 600 divorced people during the early 1980s. Their findings revealed that the use of fault
(particularly adultery) frequently involved contrivance between the parties: G Davis and M
Murch Grounds for Divorce (Oxford: Clarendon Press, 1988) p 83.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars

Wedded to 'fault'


Across the study sample more generally, and echoing the findings of empirical
research conducted during the 1970s and 1980s,3" matrimonial 'fault' was criticised
as 'damaging', 'crude' and 'cruel'." The language utilised by participants was frequently quite emotive, with several making reference to work done with couples
whose relationships were breaking down and, in one instance, to their own personal
experience. Articulated ight across the sample - and in common with a number of
studies that have provided strong evidence that divorce is associated with higher than
average rates of physical and mental disorder 3 2' was a sense that the mere fact of
marital breakdown represented a distressing and painful business. Implicit within the
various discourses was the idea that the emphasis on fault within divorce law had the
potential to make matters even more unpleasant and that this was not something that
the law should be doing.33
A number of participants also adopted what might be termed a 'forward-facing'
perspective, expressing concern about the impact that allegations of fault could have
on post-divorce life. Reflecting the suggestion that the parental relationship is increasingly taking over from marriage as the focus for legal regulation, 3' emphasis was
placed upon the quality of future relationships, particularly what were described as
'the ongoing relationships between parents'. 31 In the words of one participant, the
idea of putting 'everything negative that they can think of, or that their lawyers can
manage to embellish on a bit of paper', may well have the effect of making future
cooperation extremely difficult. 36 The impact on the parent-child relationship was
also regarded as having the potential to be equally damaging. As a further participant
argued, the tendency to 'exaggerate accusations' when seeking a quick divorce can
have the effect of:
'denigrating the parent attacked in the estimation of their own children, or
sometimes of damaging the
attacker if they [the children] know the attack is
exaggerated or unfounded. 1

30. See, for example, Davis and Murch, ibid, who found that many divorced individuals felt
considerable resentment over the allegations made about them in behaviour petitions. Similarly,
in a study of custody cases in 1977, Eekelaar found that the use of behaviour petitions often
had the effect of aggravating hostility between the parties: J Eekelaar Family Law and Social
Polic" (London: Weidenfeld and Nicolson, 2nd edn, 1984) pp 42-48.
31. Representative of government department charged with reforming divorce law.
32. For a useful summary see, for example, L Parkinson Separation, Divorce and Families
(London: Macmillan, 1987) pp 1-7.
33. This stance reflects the view of the Law Commission as articulated in its 1988 discussion
paper (above n 16, at para 3.50), as well as that of commentators such as Gwynn Davis; see,
for example, 'Divorce reform - peering anxiously into the future' [1995] Fam Law 564 at 564.
34. M Maclean and M Richards 'Parents and divorce: changing patterns of public intervention' in A Bainham, S Day Sclater and M Richards (eds) What is a Parent? A Socio-Legal
Analysis (Oxford: Hart Publishing, 1999) pp 259-270. See also Lewis, above n 24, p 94, who
argues that the effect of the process of law reform since 1969 has been to assume a degree of
individualisation with regards to the parties in their capacity as husbands and wives, while, at
the same time, increasingly putting in place measures that seek to regulate them in their
capacity as parents: 'the focus [of regulation] switched from the relationship between adults
as husband and wife, which had become more fluid, to their roles as fathers and mothers'.
35. Above n 28.
36. Mediation advisor, national children's organisation.
37. Government minister.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars


Legal Studies, Vol 26 issue 2

The wider framework

When it came to the nature of the broader legal framework within which no-fault
divorce was to be situated, a degree of divergence did begin to emerge among the
study participants. Although there was some disagreement surrounding its form and
delivery, it was generally accepted that the provision of information to those contemplating divorce did constitute a legitimate part of the process.38 Furthermore, the
overriding view was that it should be left solely to the parties themselves to decide
when, and indeed if, to access such information. As one participant observed, 'some
people need different information at different stages', while others might require no
information at all.39 It was also felt that any information provided should be a 'neutral'
resource in the sense of seeking to inform the parties, rather than attempting to shape
or direct their behaviour.4"
Study participants were also broadly supportive of the concept of mediation and
its 'formal' incorporation into the new divorce process.41 This position was, however, subject to the caveat that mediation was viewed very much as a resource for
resolving disputes, rather than as some kind of mechanism for facilitating reconciliation. Echoing the stance adopted towards the provision of information, the clear
feeling was that the choice to mediate should lie wholly within the province of the
parties; a position that reflects the views articulated by a number of commentators
involved in mediation research,42 as well as by the mediators themselves.43 Several
participants were also keen to emphasise their view that mediation was neither
suitable for all, nor did it offer any kind of 'magic' solution as opposed to litigation. While viewed in an essentially positive light, mediation was thus not regarded
as providing some kind of 'universal panacea' to deficiencies within the existing

38. The Law Commission had originally envisaged the provision of an information 'pack'
(above n 14, para 5.19). The concept of an information meeting was introduced in the government's 1993 Green Paper (Lord Chancellor's Department, above n 17). A single 'first port of
call' was envisaged for all those wishing to initiate divorce proceedings (para 8.1). This would
involve a personal interview, during which information about the divorce process, together with
'legal information', would be provided (para 8.2). By the time that the White Paper was
published in 1995 (Lord Chancellor's Department, above n 7), this personal interview had been
replaced by a 'group session' (see paras 7.13-7.16).
39. Representative of family solicitors' organisation.
40. Director, marriage support organisation.
41. In its 1995 White Paper (Lord Chancellor's Department, above n 7), the government
expressed the view that there should be a 'definite encouragement' to use mediation rather than
lawyers as the method of resolving disputes (see, for example, para 5.21).
42. An example is provided by Dingwall and Eekelaar, who emphasise the importance of
individuals retaining a degree of choice that recognises the variations in their needs and
circumstances: R Dingwall and J Eekelaar 'A wider vision' in R Dingwall and J Eekelaar (eds)
Divorce Mediation and the Legal Process (Oxford: Clarendon Press, 1988) pp 168-182 at
p 180.
43. See, for example, E Walsh, D Hodson and T Fisher 'Family mediation - the new
profession' in The Rt Hon Lord Justice Thorpe and E Clarke (eds) No Fault or Flaw. The
Future of the Family Law Act 1996 (Bristol: Family Law, 2000) pp 35-43 at p 42.
44. Above n 39. Again such a view is reflective of the position adopted by researchers who
have studied mediation within the divorce context. Indeed Dingwall and Eekelaar, above n 42,
p 180, advocate a 'mixed economy' of dispute resolution involving both mediation and lawyers.
0 2006 The Author. Journal Compilation 2006 The Society of Legal Scholars

Wedded to 'fault'


The question as to whether the law had a legitimate role beyond that of bringing
marriages to an end was the issue that generated the greatest disagreement among
policy makers. Underpinning both the general position favouring divorce after a
period of reflection, and the stance adopted towards the provision of information and
mediation, was an apparent recognition as to the limits of law when it comes to the
task of dealing in intimate relationships. As one participant observed, 'no human
tribunal is really in a position, even after elaborate investigations, to know fully what's
gone on '. 4 The clear implication is that it is only the parties themselves who can
decide if their marriage is truly over. In addition, there was a further sense that
whether or not a marriage had come to an end was something 'that you could safely
leave to the hands of the partners concerned, and take seriously what they're saying 46
Individual parties were thus trusted to be both the arbiters of their own relationships
and to choose the resources that would best enable them to put those decisions into
In addition to providing parties with the requisite tools with which to end their
marriage, study participants also considered the connections (if any) existing between
divorce law and marriage. Among the more 'pragmatic' members of the study sample,
the role of the law was constructed in relatively narrow terms. 47 Here the law was
viewed principally in terms of making the rules that governed disputes and then,
subsequently. resolving those disputes. Using the law for 'more socially desirable
goals', such as encouraging negotiation or reflection, was questioned both in terms
of practicality and appropriateness."' Within this particular constituency of opinion,
the instinctive reaction was that supporting or saving marriage was really not an
appropriate task for divorce law. Indeed, when asked about 'supporting' marriage,
one constituent actually framed their reply in terms of 'stopping people getting
divorced', a comment that echoes Freeman's charge that the 1996 Act was in fact
'anti-divorce'. This, it was felt, was not the 'point' of divorce law. Furthermore,
attempting to use the law in order to reduce the divorce rate, and thereby run the risk
of 'trapping people in desperately unhappy marriages', was regarded as no way to
support marriage.5
The concern that marriage support might turn into divorce prevention was similarly
shared by those participants more sympathetic to the fundamental concept of marriage
support. Here the feeling was that divorce law should have some kind of broader
'humanitarian' role beyond that of merely sorting out the practical issues of children.
property and money. This broader role might include contributing to 'better outcomes

45. Above n 37. This echoes the Law Commission's viexw that divorce law is not well suited
to 'engaging in the complex and sensitive factual and moral judgements' that would be
necessary in order accurately to reflect the relative blamew orthiness of the parties to a marriage;
see the Law Commission, above n 14. at para 3.6.
46. Above n 40.
47. Perhaps unsurprisingly, these more 'pragmatic' individuals comprised those participants
with 'legal backgrounds'.
48. Member law reform and review body.
49. MDA Freeman 'Divorce gospel style' [1997] Fain Law 413 at 416. While agreeing with
Freeman, Andrew Bainham raises a slightly different concern: namely that a more restrictive
divorce process also has the potential to 'put off' significant numbers of individuals who might
otherwise be inclined to marry: see A Bainham 'Changing families and changing concepts reforming the language of law' [1998] CFLQ I at 14.
50. Above n 28.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars


Legal Studies, Vol 26 issue 2

for families' 5' and setting 'the basis for constructive post divorce life'.52 However,
despite this greater preparedness to accept a framework that went beyond simply
ending marriages, constituents remained sceptical as to whether the law could actually
support it. As one observed, 'the more you look at it with the law, the more you think
well what the hell can it do?'. For these participants the key was seen to lie not in
a focus on divorce law, but rather in providing a much broader system of marriage
support within society.
For a number of policy makers, attempts to utilise divorce law in order to support
maTiage were thus viewed as illogical and inappropriate. Across the majority of the
remainder of the study sample, participants did express varying degrees of 'hope' that
something positive might be achieved in this regard and felt that the broader framework into which no-fault divorce was situated could be somehow 'better'. Nevertheless, underlying the majority view was a basic recognition of the impossibility of
legislating for happiness. Their task was thus to produce a divorce system that enabled
relationships to be brought to an end with as little acrimony and damage as possible.54
Although recognising that there was often a tendency to 'expect a lot from divorce
law', such expectations were described as largely 'idealistic'."

The 'idealist' view

The attempt by the 1996 Act to save and end marriages can, however, be described
as placing just such 'idealistic' expectations on divorce law. A key factor in the
incorporation of this attempt to save marriage was the presence of an 'Idealist'
constituency of opinion within the policy community. This constituency proved to be
particularly influential once the reform process entered the political arena. Indeed,
within the study sample, it comprised two politicians, both of whom may be described
as being situated on the political and moral 'right'.56
Far from subscribing to the majority view in favour of no-fault divorce, the
Idealists argued strongly for divorce law founded upon the concept of matrimonial
fault. For this constituency, a key problem with the current divorce system was seen
to lie in the failure by the courts really to scrutinise the state of a couple's marital
relationship. This view derives from the fact that, although the letter of the law
theoretically places a duty on courts to inquire into allegations made in a divorce
petition,57 in practical terms the burden lies with the petitioner to establish one of the
five facts necessary to demonstrate marital breakdown. Establishing the requisite facts
is a relatively simple task. Indeed, by virtue of the 'special procedure' that has applied
to all undefended divorce petitions since 1977, it has become largely a matter of

51. Director, marriage support and research organisation.

52. Director, national mediation organisation.
53. Ibid.
54. Above n 40.
55. Above n 48.
56. It is acknowledged that the size of this constituency is small. However, there are numerous
examples of similar views being articulated, particularly during the parliamentary stages of the
reform process. See, for example, Hansard HL Deb, vol 567, col 700, 30 November 1995;
HansardHC Deb, vol 274, col 738, 25 March 1996.
57. Matrimonial Causes Act 1973, s 1(3) places a duty on courts to inquire 'so far as [they]
reasonably can' into allegations contained in the petition.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars

Wedded to 'fault'


correctly filling out the requisite forms.5" The result is effectively divorce on demand,
with the granting of a decree becoming the almost inevitable consequence of filing a
divorce petition. 9 Implicit within Idealist discourse was the belief that the existing
law thus allowed people to divorce for no reason, or at least for no genuine one.
Divorce had become the easy option, with the law charged with the offence of
undermining commitment to marriage.
The majority of study participants - albeit with varying degrees of enthusiasm did recognise the need for the law to deal in the reality of changed social behaviour
and values. Indeed, one central aspect of the 'problem' with the existing system could
be located in the law's 'social alienation' or detachment from modem social values.60
The failure of the fault doctrine to reflect the reality of married life and marriage
breakdown was identified as a key example of that alienation. As one participant
explained, 'people's interpersonal relationships... really don't fit well within.., the
requirement to ... detail the errors, omissions and faults of one party' .61By contrast,
the Idealists were extremely uncomfortable with this more 'reflective' policy perspective. Echoing the anxieties articulated by more 'conservative' commentators such as
Ruth Deech,6 2 current law was criticised for following social behaviour far too closely.
At one 'level', the problem was located in the perception that the law's failure to
scrutinise marriage breakdown had effectively rendered marriage little more than a
low-status contract. As one constituent argued, 'if you break the law, and if you break
your promises on anything else, the law does investigate' .63Although not in fact true
as a matter of law, this claim is illustrative of a pervasive unease among constituents
regarding the evolution of law and marriage in modern society. Building on a perception that the practical eclipse of matrimonial fault represented an abandonment of
the attempt by divorce law to spread normative standards,' the law was charged with
undermining marriage in a broader sense. In effect, the divorce regime was viewed
as part of a wider system of law - including that surrounding adoption and inheritance
- that sought to equate marriage and alternative family forms.
The clear view held by Idealist constituents was that, far from reflecting social
change, the law should actually be setting the 'standard' for relational behaviour.
Central to the nature of that standard were conceptions of marriage. With their

58. R Probert Cretnev's Family Law (London: Sweet and Maxwell, 5th edn, 2003) p 53.
Under this 'special procedure', instead of orally presenting petitions to a judge in the petitioner's presence, the various forms are scrutinised by a judge sitting in private. Provided the
judge is satisfied that the conditions for a divorce are met, a certificate is then issued on the
basis of which a divorce will subsequently be granted. The parties are no longer required to
attend court, with the result that divorce has been transformed into an essentially administrative
process. See, for example, S Cretney 'Family law at the Millennium - introduction and
overview' in S Cretney (ed) Family Law Essaysfor the New Millennium (Bristol: Family Law,
2000) pp 1-9.
59. MDA Freeman 'Divorce without legal aid' [1976] Fam Law 255.
60. J Van Houtte 'Family law and family reality. A sociolegal and paradigmatic approach'
(1998) 3 Sociologia del diritto 61.
61. Above n 36.
62. R Deech 'Divorce law and empirical studies' (1990) 106 Law Quarterly Review 229 at
63. Member of House of Lords: Conservative.
64. J Eekelaar 'Family law and social control' in J Eekelaar and J Bell (eds) Oxford Essays
in Jurisprudence(Third Series) (Oxford: Clarendon Press, 1987) pp 125-144 at p 133.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars


Legal Studies, Vol 26 issue 2

concern for the quality of post-divorce family life, the majority of policy makers
demonstrated a preparedness to expand the concept of family beyond the immediate
confines of marriage. The need to ensure that parents continued to have ongoing
contact with children was repeatedly emphasised, as were the financial responsibilities owed to them. This approach has been described as constituting the reconceptualisation or re-packaging of the family, through the generation of the image
of the 'separated-but-continuing family' .65 By contrast, the Idealists regarded marriage as fundamental both to notions of 'family' and to those categories of persons
who might legitimately define themselves as such. In a prime example of the Western
tendency to conceptualise family as a natural and concrete entity,66 ideally standing
aloof from social change,67 the family was very clearly defined in terms of the
traditional two-parent unit based upon marriage. While for the majority of study
participants divorce presented an opportunity for family reorganisation - divorce was
effectively normalised as just another event in the life cycle of the family68 - among
this particular constituency it was regarded as heralding its inevitable demise.
In addition to signalling the end of family, divorce was also viewed as fundamentally indicative of moral decline. Here, marriage was constructed as the 'proper' form
of intimacy, with any deviation from the marriage model being described as 'wrong' 69
and 'irresponsible'." In addition, and reflecting a very confident personal Christian
faith on the part of individual constituents, marriage was also perceived to be what
might best be described as the 'epitome' of religious morality. Inherent within Idealist
discourse was the clear sense that society becomes demoralised when the links
between law and religion are severed. 7' Divorce, thus, not only violated a familial
morality but also a more fundamental religious one.
Once again this stance provides something of a contrast to that adopted by the
majority of the policy community. The emphasis placed by participants on the continuing bonds and responsibilities between family members post-divorce tends to
militate against the idea that divorce inevitably heralds the advent of some kind of
moral void. Rather, the possibility of parties negotiating new, more appropriate and
more individual 'moral terrains' is opened up.72 Reflecting the diversity of modern
society, moral values are thus regarded as deriving from individual agency.73 Instead
of simply adhering to some kind of abstract imperative, true morality is reconstituted

65. S Day Sclater and C Piper (2000) 'Re-moralising the family? - family policy, family law
and youth justice' [2000] CFLQ 135 at 144.
66. J Ribbens Mothers and their Children: A Feminist Sociology of Childrearing(London:
Sage, 1994) p 57.
67. EB Silva and C Smart 'The "new" practices and politics of family life' in EB Silva and
C Smart (eds) The New Family? (London: Sage, 1999) ppl- 12 at pp 2-3.
68. S Day Sclater Divorce: A Psvchosocial Study (Aldershot: Ashgate, 1999) p 14.
69. Above n 63.
70. Member of House of Commons: Conservative.
71. R Ahdar Law and Religion (Aldershot: Ashgate, 2000) p 2.
72. Regarding the negotiation of individual 'moral terrains', see C Smart and B Neale Family
Fragments? (Cambridge: Polity Press, 1999); C Smart, B Neale and A Wade Divorce and
Changing Family PracticesWorking Paper 11 (Leeds: Centre for Research on Family, Kinship
and Childhood, University of Leeds, 1998).
73. S Sevenhuijsen Citizenshipand the Ethics of Care: FeministConsiderationsabout Justice,
Morality and Politics (London: Routledge, 1998) p 25.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars

Wedded to 'fault'


in terms of actively and reflexively exercising choice with responsibility. 74 In effect,

there is more than one way in which to 'do' family life. As one participant who,
interestingly, represented a Church body, observed:
'The latest Social Trends says that ... the percentage of people who believe
what is ... the formal position of the Churches on sexual relations, that all
sexual relations outside marriage are always wrong, is now seven or eight per
cent ... maybe those seven or eight per cent are already in church, but whether
or not they are, there must be a huge number of people, who I don't think are
totally amoral and promiscuous, but who actually believe these things are more
For the Idealists, however, the issues were not complicated. Here, it was regarded
as self-evident that the law, through the mechanism of the divorce process, should
be about reinforcing marriage and placing 'moral expectations' on the parties to a
marriage. The role accorded to the law was thus constructed both in terms of injecting
the basic moral content into marriage and of enforcing (and it would seem signalling)
the importance of marriage and the marital commitment. The route to achieving this
was seen to lie in the retention of a fault-based divorce law: to abandon fault would
be to remove the moral basis of marital obligations.75 However, in the future, this
would be supported by a proper investigation of the circumstances of marital breakdown. The end result was thus a call for the re-imposition of a correctional divorce
code or framework. Indeed, in the opinion of one constituent, this code should
comprise part of a broader framework of law and policy - including a tax system
providing financial support to marriage and a benefit system offering reduced support
to lone-parent families - that made it clear that marriage constituted the standard to
which society should aspire. 76

The 'compromise'
The family policy community was thus characterised by a clear juxtaposition of
views. Situated on one 'side' of the debate were the majority of participants, who
adopted what might be described as a 'forward' facing view of society. This 'pragmatic' position was broadly accepting of the changes in social and familial behaviour
and values. This 'societal view', in turn, provides the foundation for the construction
of a law that reflects those changes. For individual participants, the questions to be
asked of the law are primarily concerned with how things 'are', rather than how they
'ought' to be. How they 'are' relates back to the reality of society and social life, to
the 'performance' of law and to its limitations when dealing with intimate relationships. This recognition that marriage and family life have changed, combined with
a realistic assessment about the law's limited ability to transform such deeply
entrenched social changes, generates pressure for a different form of legal process;

74. J Ribbens-McCarthy, R Edwards and V Gillies Parentingand Step-Parenting Contemporarv Moral Tales, Occasional Paper 4, Centre for Family and Household Research (Oxford:
Oxford Brooks University. 2000) p 36.
75. For example, the removal of adultery might be thought to undermine the marital obligation of fidelity: A Bainham 'Men and women behaving badly: is fault dead in English family
law?' (2001) 21(2) Oxford Journal of Legal Studies 219 at 222.
76. Above n 63.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars


Legal Studies, Vol 26 issue 2

namely one that reflects social pressures for a more 'open' approach to marriage and
which seeks to facilitate the best possible outcomes for families.77
Set alongside this was the view offered by the Idealists. Here the sense of divorce
as indicative of deterioration and moral malaise, in which law is conceptualised as a
complicit actor, reflects a much more 'backward' facing vision. In accordance with
Morgan's observation that ideological constructions of marriage and the family are
generally bound up with ideas of stability and change,78 this vision reaches towards
an elusive 'golden age' in which society was populated by the traditional family
and characterised by a universal set of moral values. Such a vision provides the
foundation for the construction of the law as a vehicle for the realisation of that
society, with the result that it becomes cast at the mechanism for social change. The
mechanism by which that change is to be achieved involves a degree of turning
back the 'divorce clock'. The fact of marriage breakdown is reconstructed as a
'public' matter, is subjected to investigation and, ultimately, to adjudication by the
Among the Idealists, personal relationships are thus constituted as a legitimate site
of legal regulation, with the law accorded a positive role in the enforcement of
personal morality. In something of an echo of the arguments advanced by Devlin,
these discourses accord legitimacy to the law to intervene in individual morality in
order to preserve the fabric of society. It is interesting that although Devlin's views
have fallen out of favour within jurisprudence, his position remains relevant within
this context. Of course, in this particular case, it is clear that the societal fabric that
the Idealists wish to preserve has already unravelled - a fact that raises fundamental
questions about the validity of their vision. Nevertheless, within this strand of opinion,
the law is confidently constructed in terms of doctrine,
s and as being primarily about
'first principles' and the dissemination of standards. 8
The end product of this juxtaposition of views ultimately proved to be one of
compromise. The 'headline' nature of that compromise was a 1996 Act that sought
to satisfy the more forward-thinking majority with its introduction of no-fault divorce,
while, at the same time, seeking the approval of the Idealists by placing a premium
on marriage as the traditional basis for family. Indeed, as one of the study participants
suggested, marriage was cast as the 'gold standard'." Underlying this negotiation
between 'traditional' family values and acknowledging both the demographic and
attitudinal trend away from them,82 is a basic tension between autonomy and coercion.
On the one hand, 'no fault' implies that the decision to divorce is for the couple alone
- in effect the court's role in deciding whether the status of marriage should be
terminated is reduced to little more than that of 'a gatekeeper checking that the correct
boxes have been ticked on the form' .83Similarly, the emphasis placed on mediation
suggests that the primary responsibility for sorting out their affairs also lies with the
77. Rodger, above n 12, at 14.
78. DHJ Morgan 'Ideologies of marriage and family life' in D Clarke (ed) Marriage,Domestic Life and Social Change. Writings for Jacqueline Burgoyne (1944-88) (London: Routledge,
1991) pp 114-138 at p 115.
79. P Devlin The Enforcement of Morals (Oxford: Oxford University Press, 1965).
80. E Hasson 'The street-level response to relationship breakdown: a lesson for national
policy?' (2004) 26(1) Journal of Social Welfare and Family Law 35 at 44.
81. Above n 40.
82. Day Sclater and Piper, above n 65.
83. See Cretney, above n 58, p 5.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars

Wedded to 'fault'


parties. However, despite this apparent endorsement of autonomy, the role accorded
to the law under the 1996 Act is not simply one of facilitating and implementing
decisions, but rather of seeking to influence the decisions themselves.'
At one 'level', this influence is exercised through the incorporation of the promarriage principles discussed previously. These have been described as representing
an example of the 'expressive' function of modern family law - in effect, the law is
concerned to 'radiate messages' designed to influence behaviour in a general way. 85
At a second 'level', the reinforcement of these general policy principles through the
imposition of a series of procedural steps with which parties must comply generates
scope for the use of what Eekelaar has described as 'value-based' persuasion. 6 One
example of this can be found in the evolution of the period for reflection and
consideration. The main purpose of this period was originally described by the Law
Commission as ensuring that a marriage really had broken down irretrievably.
However, as Eekelaar observes, the effect of legislating on such a basis would have
been to signal that the state was simply willing to stand by and accept the situation
as it was resolved between the parties. This, he suggests, was not the kind of
message that the government wished to convey. The end result was thus a legislative
'avowedly viewed primarily as giving the parties an opportunity to explore the
possibility of holding back from
divorce, and making them aware that they are
expected to use it in this way.'
Adopting a similar perspective, Collier argues that the 1996 Act effectively 'reconstituted' divorce 'as a different kind of "governable space" '.88 With specific reference
to the information meeting - which must be attended by anyone wishing to commence
divorce proceedings, oppose such proceedings or file an order relating to either
children or finances - attendees are described as, 'entering a point of regulation a
central aim of which is to foster a particular consciousness' on their part.8 9 A certain
kind of good divorcing subject is thus brought into being: in this instance one who
will make a 'better' decision about the ending of their marriage. Consequently,
although the 1996 Act may appear to treat individuals as if they were independent,
responsible and autonomous, it actually seeks to influence positively the way in which
that autonomy is exercised. 9

The idealist influence

The question that flows from this relates to why it was felt necessary to compromise
in order to accommodate what was, within the policy community, a minority idealist
opinion in favour of positively supporting marriage. Certainly one factor at work

84. J Dewar 'The normal chaos of family law' (1998) 61(4) The Modem Law Review 467
at 477.
85. Ibid, at 483.
86. J Eekelaar 'Family law: keeping us "on message" ' [1999] CFLQ 387 at 389.
87. Ibid.
88. R Collier 'The dashing of a "liberal dream"? - the information meeting, the "new family"
and the limits of law' [1999] CFLQ 257 at 261.
89. Ibid.
90. Dewar, above n 84, at 476.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars


Legal Studies, Vol 26 issue 2

appears to be the inherent appeal, beyond the relatively narrow confines of the Idealist
constituency, of the prospect of saving marriages. As one study participant explained,
the idea of saving 'saveable' marriages was identified as a concept possessing particular ability to appeal right across the policy community:
'it really caught people's imagination because I think they feel the concept of
saving the saveable marriage isn't about interfering in people and saying don't get
divorced, it's about saying let's find out the ones that are saveable, the people
who in a sense got caught up in the whole process ... So I think that phrase
encapsulated a ... national hope that we could actually make a difference, and we
could do that in a way that wouldn't be intrusive.' 9
This 'compromise' was thus able to dovetail with the marriage-saving agenda of the
Idealists. At the same time, it allowed those more 'reformist' policy makers, who also
genuinely believed in the importance and primacy of marriage, to feel that they were
doing something positive. Indeed, for certain participants within the study sample,
the appreciation that the law needed to deal with the reality of modem society was
fundamentally framed by their belief in marriage, both as the ideal to which one might
aspire and as 'best' in moral terms. As one particular participant argued, the law
should neither 'encourage' the ending of marriage nor make it 'easy to go in and out
of marriage'. The key was therefore to set divorce within what was described as 'a
better context than just divorce on its own' .9' The nature of that better context was
one that positively sought to save marriages.
It is also important to look to the impact that Idealist views proved to have on the
more pragmatic members of the policy community. As previously discussed, several
of the study participants did raise very fundamental questions as to whether divorce
law could, and indeed should, have a broader role beyond that of ending a marriage.
In the personal opinion of one such participant, the 'best system' was felt to be one
that would allow divorce upon demand as a purely administrative process. The reason
given for adopting such a position was that this constituted the 'most efficient' manner
in which to end marriages. 3 Thus, in an ideal world, the law would indeed be truly
supportive of individuals' decision making. This particular participant did, however,
stress that divorce on demand was never actually advocated during the reform process.
The reason for this was that it was deemed not to be 'a politically and socially
acceptable position to have'.
Even among the more pragmatic participants there was no real challenge to either
the placement of marriage at the centre of policy or the 'marriage-saving' agenda
promoted by the Idealists. This might be attributable to a genuine faith in marriage
on the part of constituents. However, an alternative explanation may be located in a
basic unwillingness to speak out against its normative resonance. Whatever the explanation, the idea of marriage as somehow 'best' was one that was articulated right
across the policy community. Indeed, as one of the more pragmatic participants
observed, '[it] provides a better framework' 94
A number of policy makers did consider the making of connections between
divorce law and marriage to be inappropriate. Nevertheless, none seemed able to
mount a counter-argument against them. One example of this apparent inability is


n 51.
n 37.
n 28.
n 48.

2006 The Author. Journal Compilation 2006 The Society of Legal Scholars

Wedded to fault'


provided by one constituent, who observed that there was simply 'no point' in arguing
about the general principles of supporting and saving marriage. Despite being of the
opinion that such principles really did not 'fit' within a divorce law. they explained
how, at the same time, 'everybody would say that ... saving a marriage that can be
saved is something which should be done'.95 This view was reiterated by a second
participant, who suggested that it was simply not possible to take issue with the
principles on the basis that they were, 'terribly reasonable'.9
A further contributory factor to the absence of any real challenge to the primacy
placed on marriage appears to be an awareness among participants of the broader
context within which divorce reform is conducted, and the inherent difficulties that
this creates for the reform process. As one participant remarked, divorce reform has
always been 'a political hot potato'. The result is that, whenever governments
attempt to act on family-related issues, 'the Daily Mail jumps on them, and Middle
England is up in arms'.97 It was also recognised that, within the broader political and
social contexts, divorce law was an issue that resonated far beyond simply dealing
with the breakdown of marriage. Consequently, the need to ensure that divorce
reform was politically acceptable thus became a central influence in shaping the new
law. A key element of that acceptability was, in turn, located in the nature of the
connections made between the law and marriage, specifically a divorce law that
sought not only to end but also to support marriage. The incorporation of a suitably
supportive framework thus became part of the political 'price' of achieving no-fault
Within the policy community, a clear perception existed to the effect that, in order
to have an effective voice within the policy debate, and indeed to be taken seriously.
it was necessary to conduct that debate within the broader, more ideologically charged
and generally pro-marriage context. While some study participants were of the opinion that attempts to utilise divorce law in order to support marriage were illogical and
inappropriate - and indeed the majority doubted its efficacy - the formal adoption of
such a position within the policy arena was seen to be fundamentally unacceptable.
In order for their views to be listened to, participants apparently felt it necessary to
frame them as being broadly supportive of marriage. Combined with participants'
acute awareness of the inherently political nature of divorce reform, the impact of the
pro-marriage Idealist strand of opinion was thus effectively to de-legitimise potential
alternative discourses.


The 'role' of la"s
The 1996 Act received Royal Assent on 4 July 1996, with the new divorce provisions
originally scheduled for implementation in 2000. However, in January of 2001, the
government announced its intention to ask Parliament to repeal those provisions. The
divorce reforms were therefore never implemented. One central reason given for this
decision was the apparent failure of the pilots of the new procedure to achieve the

95. Above n 28.

96. Above n 39.
97. Above n 51.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars


Legal Studies, Vol 26 issue 2

objective of saving marriages.98 This failure is perhaps unsurprising, given the considerable debate surrounding the issue of whether the law actually has any direct
impact upon behaviour. 99 Is it possible to either imbue people with legal principles
to such an extent, or to present them with the requisite incentives to adopt them, that
they will choose to constrain their actions in the required way?'l 0
When it comes to deciding whether or not to continue a relationship, Johnson has
identified three different experiences of commitment: 'personal commitment' - the
feeling one 'wants' to continue; 'moral commitment' - the feeling one 'ought' to
continue; and 'structural commitment' - the feeling that one 'has' to continue with
the relationship.'0 ' The first is largely to do with the satisfaction derived from the
relationship itself, the second derives from one's own value system and sense of
right and wrong, while the third originates externally. The first two experiences of
commitment would thus seem to lie somewhere beyond the reach of law. In a related
vein, Pound suggests that, while law can deal with the 'outside' of people, it cannot
attempt to control attitudes and beliefs. 02 To employ a 'divorce-specific' example,
while the law can require parties to wait for their divorce, it cannot make them
reflect on the possibility of saving their marriage while they do so. As Cretney has
observed, some will brood about their grievances, some will use the time to exploit
an emotional or financial advantage over the other, while others 'are likely to spend
the time in the far more pleasurable activity of conceiving - necessarily illegitimate
- babies'.'0 9

A second 'aspect' of the law's ability to shape behaviour in this particular context
relates to morality and the fact that the meaning of intimate relationships has changed
over the years. As noted by a number of policy makers who participated in the study,
modern society is no longer characterised by an agreed moral code. As one participant
commented with regards to marriage:
'There's ... the very narrow legal view that marriage is a system for regulating
the onward transmission of property ... It's all about inheritance, and it's all about
who gets the family estate, you know that's one extreme ... And the other extreme
is... marriage is a holy estate signifying the unity between Christ and the Church
...and everything else in between." 04

98. See Lord Chancellor's Department Divorce Law Reform - The Government Proposes to
Repeal Part II of the Family Law Act 1996 Press Notice 20/01, 16 January 2001. Emphasising
the centrality of compulsory information meetings to the new divorce process, the press notice
stated that none of the six information models tested in the pilot schemes had proved 'good
enough' to justify implementing the new process on a national scale. It further stated that
evaluation of the pilot schemes showed that although those attending did find the provision of
information to be valuable, the meetings were generally failing to save marriages.
99. For a summary, see, for example, J Lewis Marriage,Cohabitationand the Law: Individualism and Obligation (London: Lord Chancellor's Department, 1999).
100. R Dingwall, J Eekelaar and T Murray 'Childhood as a social problem: a survey of the
history of legal regulation' (1984) 11(2) Journal of Law and Society 207 at 212-213.
101. MP Johnson 'Commitment to personal relationships' in WH Jones and D Perlman
Advances in Personal Relationships: A Research Manual vol 3 (London: Jessica Kingsley,
1991) pp 117-143.
102. R Pound 'The limits of effective legal action' (1917) 27(2) International Journal of Ethics
103. S Cretney 'The Divorce White Paper - some reflections' [1995] Fain Law 302 at 303.
104. Above n 31.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars

Wedded to 'fault'


This particular participant also went on to consider the nature of the 'added value'
that can be gained from getting married, questioning whether it involved 'economic
protection for women', a 'secure home', 'public commitment', or indeed something
else. The conclusion reached was that, while individuals may provide a personal
answer, there no longer appears to be a 'collective' view prevalent within society as
a whole. Marriage is no longer viewed as the only way in which to 'do' family life;
while the removal of prescriptive frameworks in the form of marriage vows has not
heralded the end of moral responsibility.' 5
With its emphasis on marriage, the 1996 Act arguably represents an attempt to use
legislation to create the illusion that there are a set of 'organically shared values
around family life'."' By so doing, it may be suggested that the 1996 Act effectively
sought to eliminate, or at least to deny, some of the pluralist and complex social reality
with which it was faced. Certainly the results from the information pilots do indeed
suggest the production of a legal framework that was largely ignored at the social
level. Yet, despite its resulting 'failure', the Lord Chancellor has continued to stress
the government's continued commitment both to 'supporting marriage' and to 'supporting families when relationships fail'. The 1996 Act was simply 'not the way to
achieve those aims'. 7 The clear implication is that government continues to view
divorce law as having a legitimate role beyond that of simply bringing marriages to
an end.

Civil partnerships - a missed opportunity?

This idea that law has some kind of broader role is further extended into the context
of same-sex relationships by virtue of the 2004 Act. Under the terms of the 2004 Act,
a registered civil partnership can be dissolved by the courts through the making of a
'dissolution order'. Just as the sole ground for obtaining a divorce is that a marriage
has 'broken down irretrievably', a dissolution order may only be granted on the basis
of an irretrievable breakdown of the civil partnership.' Such breakdown is demonstrated by proof of one of the 'facts' set out in s 44(5). These facts embrace both
instances of 'fault' - namely that one party has behaved in such a way that the other
cannot reasonably be expected to live with him or her, and desertion - and the 'nofault' situations of 2 years' separation, where the parties agree on dissolution, and 5
years' simple separation in the absence of such an agreement. Evidence of one or
more of these facts must be produced, and a duty is then placed upon the court to
inquire, so far as possible, into the facts that are alleged.0 9 If the court is satisfied on
the evidence that the partnership has broken down, then an order for dissolution will
be granted." 0
105. See, for example, Lewis' research on marriage, cohabitation and commitment: J Lewis
'Marriage and cohabitation and the nature of commitment' [1999] CFLQ 355; J Lewis, J Datta
and S Sarre Individualism and Commitment in Marriage and Cohabitation (London: Lord
Chancellor's Department, 1999).
106. Dewar, above n 84, at 484.
107. Lord Chancellor's Department, above n 98.
108. Civil Partnership Act 2004, s 44(1).
109. Ibid, s 44(2).
110. The initial dissolution order is 'conditional'. An application to make the order final can
then be submitted after a period of 6 weeks has elapsed from the date of the conditional order:
ibid, s 38.
2006 The Author. Journal Compilation 0 2006 The Society of Legal Scholars


Legal Studies, Vol 26 issue 2

Subject to one exception, this dissolution process largely mirrors the framework
for the ending of marriages. The exception is that, under divorce law, adultery
constitutes an additional (fault-based) 'fact' capable of establishing marital breakdown. 1 The reason for this difference is the government's view that adultery has a
'specific meaning within the context of heterosexual relationships', and that it is
neither 'possible nor desirable' to read this across to same-sex partnerships. In the
event of sexual infidelity, then it remains open to a civil partner to utilise the 'unreasonable behaviour' fact.112 This view was reinforced by Baroness Scotland who
emphasised that the legislation was concerned with the 'quality' rather than the sexual
nature of same-sex relationships, and that it was always open to parties 'to tell of
their reasonable expectation of what that relationship would entail'."'
It might, of course, be suggested that the omission of adultery from the civil
partnership regime reflects a construction of same-sex couples as somehow 'different'
from their heterosexual counterparts. However, of particular interest for present purposes is the fact that the government chose to revert to current divorce law as the
template for partnership dissolution. This option was chosen despite the generally
positive response to the idea of divorce reform - in particular to the adoption of nofault divorce. When originally proposing the establishment of its scheme, the government argued that registration would both send a strong message about the seriousness
of commitment involved in one's partnership, and serve to promote and support stable
relationships. "' As registered partnerships were intended to be long term, 'an appropriate degree of formality' would be required in order to bring them to an end." 5 The
use of a formal, court-based dissolution process was felt to be 'in keeping' with the
serious nature of the responsibilities that civil partners owed to each other." 6
The government did consider the possibility of introducing a no-fault dissolution
process into the 2004 Act. However, particular reference was made to the fact that
the pilot schemes that followed the attempt to institute no-fault divorce via the 1996
Act had indicated that the legislation would not succeed in either saving saveable
marriages or reducing conflict on divorce. In the light of these findings, and the fact
that the 1996 divorce reforms were awaiting repeal, the 1996 Act framework was not
felt to constitute an appropriate model for civil partnerships.
It might, however, be argued that this reasoning is disingenuous in that neither
of these apparent 'failures' are necessarily products of a no-fault process. First, and
as this paper has already suggested, it is unrealistic to expect divorce law to save
marriages. When the modern family has evolved into an entity that is both diverse
and fluid, policies that attempt to cling to traditional models of family life will
111. Matrimonial Causes Act 1973, s 1(2)(a) provides that the irretrievable breakdown of
marriage may be established by the petitioner satisfying the court 'that the respondent has
committed adultery and the petitioner finds it intolerable to live with the respondent'.
112. Responses to Civil Partnership.A Framework for the Legal Recognition of Same-Sex
Couples (London: Women and Equality Unit, Department of Trade and Industry, November
2003) p 35.
113. House of Lords Grand Committee, col GC19, 10 May 2004, Minister of State, Home Office.
114. Civil Partnership.A Frameworkfor the Legal Recognition of Same-Sex Couples Consultation Paper (London: Women and Equality Unit, Department of Trade and Industry, 30 June
2003) para 2.1.
115. Ibid, para 5.1.
116. Baroness Scotland, Minister of State at the Home Office, speaking during the Second
Reading of the Civil Partnerships Bill in the House of Lords: HansardHL Deb, vol 660, col
390, 22 April 2004.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars

Wedded to 'fault'


invariably struggle to achieve their aims. Furthermore, marriage saving at the point
of divorce comes far too late, in that people do not simply wake up one morning and
decide to get divorced. Indeed, evaluation of the information pilots established under
the 1996 Act showed that over half of attendees were separated from their spouses at
the time of the meeting. Added to that, significant numbers had already made attempts
to save their marriages." 7 The scope for further marriage saving was thus limited in
the extreme. Secondly, the pilots actually failed to divert people away from lawy ers
and into mediation"' - an outcome that does not invariably equate to a failure to
reduce conflict. Indeed, matrimonial lawyers in England have long suffered from the
perception that they exacerbate conflict, despite the fact that this is not supported by
research evidence." 9 It might, therefore, be suggested that 'no-fault' in fact became
a victim of the unrealistic expectations that were placed upon the new divorce law.
If the marriage model is to be transferred into the context of same-sex relationships, then it is certainly arguable that the transfer should be 'wholesale', ie warts
and all. Although strenuous efforts were made to emphasise that the 2004 Act would
not herald the advent of gay marriage, 20 it has been described as exactly that in almost
all but name.' 2' Of course, there is considerable literature debating whether or not
marriage constitutes an appropriate, or indeed a desirable, model for same-sex relationships. 22 Indeed, there is no consensus of feeling among those to whom the right
to marry would be extended, that this would be a desirable state of affairs. 1 3 For
some, the opening up of marriage to same-sex couples is the route through which the
principle of equality is best served. 2 By contrast, others regard such assimilation
into heterosexual culture as both inappropriate and as effectively de-legitimising
alternative forms of domestic relationship.' 25
117. Lord Chancellor's Department Information Meetings and Associated Provisions within
the Family Law Act 1996. Final Evaluation Report Vols 1-3 (London: Lord Chancellor's

Department, 2001) vol 2, pp 285-286.

118. lbid, at pp 447-451.
119. See, for example, G Davis, S Cretney and J Collins Simple Quarrels (Oxford: Clarendon
Press, 1994).
120. See, for example, above n 114, para 1.3.
121. B Hale 'Homosexual rights' [2004] CFLQ 125 at 132.
122. See, for example, C Lind 'Sexuality and same-sex relationships in law' in B
Brooks-Gordon et al (eds) Sexuality Repositioned. Diversit and the Lasr (Oxford: Hart, 2004)
pp 109-130; C Kitzinger and S Wilkinson 'The re-branding of marriage: why " e got married
instead of registering a civil partnership' (2004) 14(1) Feminism and Psychology 127.
123. J Murphy 'Same-sex marriage in England: a role for human rights? [2004] CFLQ 245
at 245.
124. For example, Kitzinger and Wilkinson argue that anything less than marriage effectively
renders same-sex couples second class citizens: above n 122, at 144. In a similar vein, Waaldikj
suggests that the closer any civil partnership regime is to the marriage model, then the better
the principle of equality is served: K Waaldikj 'Taking same-sex partnerships seriously European experiences as British perspectives?"' [2003] IFL 84.
125. Norrie argues that to the extent that marriage retains relevance today, it does so only in
the context of opposite-sex relationships. The marriage model denies the very real differences
that exist between same- and opposite-sex couples, and same-sex relationships do not comfortably 'fit' the heterosexual model. Adopting the marriage model is also charged with denying
equal respect to those who cannot or will not model their relationships on the heterosexual
norm. Real equality can thus only be achieved though the legal recognition of a variety of
forms of domestic relationship: K McK Norrie 'Marriage is for heterosexuals - may the rest
of us be saved from it' [2000] CFLQ 363.
2006 The Author. Journal Compilaton 2006 The Society of Legal Scholars


Legal Studies, Vol 26 issue 2

A consideration of these debates lies beyond the scope of the present paper. It is,
however, notable that there are strong political reasons for adopting the marriagedivorce model. It undoubtedly represented the politically easier 'option' for government, in that it sent the clear message that only those serious and committed relationships would be accorded legal recognition. At the same time, same-sex relationships
are rendered less 'threatening' through their incorporation into a traditional
(marriage-like) framework. Utilising such a model also minimises the potential for
allegations, particularly from the gay and lesbian community, that the legislation
accords same-sex relationships some kind of secondary status.
The inclusion of a no-fault partnership dissolution scheme would have opened the
2004 Act up to allegations that same-sex couples were merely being offered 'marriage
lite' .126 As previously discussed, it was certainly the case that much of the criticism
aimed at no-fault divorce centred on the notion that it would lead to easy divorce and
the devaluation of marriage. Indeed, a no-fault process was charged with reducing
marriage to a short-term option in which there would be no standards of justice, no
adjudication and no responsibility. 127 The removal of fault thus stood accused of
actively discouraging 'any concept of lifelong commitment to marriage, to standards
of behaviour, to self-sacrifice, to duty, to any thought for members of the family'. While the experience of the 1996 Act demonstrates that such arguments do hold
a good deal of political sway, they should, nevertheless, be treated with some caution.
Rather than representing the easy option, it has been argued that imposing a 1-year
waiting period for reflection and consideration would have the reverse effect of
emphasising that one's marriage should be taken seriously, and that it should not be
abandoned without thinking long and hard about the consequences. 9 Furthermore,
the fault-no-fault dichotomy does not simply equate to difficult and easy divorce. The
reality is that dissolution regimes will impact on couples in different ways. 3 ' For
example, requiring couples to wait under the 1996 regime might make divorce easier
for those who rely on the separation facts. This would not, however, be the case for
the majority who currently choose the quicker fault-based option.
Questions also surround the issue of whether current divorce law, together with its
attendant problems, should be simply transferred across to same-sex relationships.
The failure of the 1996 Act has meant that large numbers of ordinary men and women
seeking to leave their marriages continue to be caught up in a framework that it is
outdated, incoherent and, for many, painful and distressing. The continued adherence
to fault is partially underpinned by the belief that the law can seek to set a standard
for intimate relationships. Yet this notion is fundamentally undermined by the reality
that, following the implementation of the special procedure,' 3 ' there is an almost
laissez-faire attitude towards the awarding of divorce decrees. 3 2 Given both the
pressure on the court system and the inherent difficulties of investigating the breakdown of relationships, it is likely that the practice of partnership dissolution will
ultimately follow a similar route.


Kitzinger and Wilkinson, above n 122, at 136.

Deech, above n 62, at 244.
Baroness Young Hansard HL Deb, vol 567, col 733, 30 November 1995.
R Schuz 'Divorce reform' [1993] Fam Law 630 at 631.
Davis and Murch, above n 29, p 148.
Above n 58.
Davis and Murch, above n 29, p 13.

2006 The Author. Journal Compilation 2006 The Society of Legal Scholars

Wedded to 'fault'


It should also be recognised that the complicated framework of the 1996 Act does
not constitute the only possible model for a no-fault process. Indeed, an alternative
template was originally offered by Lord Lester's Civil Partnerships Bill, which effectively constituted the precursor to the 2004 Act. Formulated in collaboration with
Stonewall, the Bill was introduced into the House of Lords in January 2002. It
proposed that unrelated couples of the same or opposite sex, who had lived together
for at least 6 months, would be able to register their partnerships. Upon registration,
civil partners would enjoy many, although notably not all, of the rights and obligations of a married couple. This Bill was extensively debated at its second reading on
25 January 2002. However, following assurances from the government that it was
conducting a cross-departmental review of civil partnerships with a view to producing its own legislation, it was subsequently withdrawn from Parliament in early
With regards to partnership dissolution, the Lester Bill provided that applications
for what was termed a 'cessation order' could be made either by one civil partner or
by both partners jointly."4 Where joint applications were accompanied by a final
'settlement of arrangement' - dealing with the allocation of property belonging to
the partners and agreed by both of them - a cessation order would be made as soon
as 'reasonably practicable' following the expiry of a 1-month period. In all other
cases, the order would be made as soon as practicable after a period of 9 months,
although this135period could be reduced on production of a final settlement arrangement
to the court.
Lord Lester's Bill has been praised as representing a more thoughtful attempt to
create a regime that did not simply borrow from the content of marital regulation.
Furthermore, it created a regime that sought to maximise the autonomy of individuals
in the regulation of their internal affairs. 1 6 In relation to divorce, it has been suggested
that the notion of offering people a service remains 'something of a novelty' 137Yet,
as Mansfield et al have argued, it is necessary for family policy to be 'in tune with
changing social attitudes'. Those attitudes are both 'individualistic' and 'characterised
by independence and freedom of choice'.13 Certainly, the position adopted by the
majority of policy makers who participated in the study can be described as a
primarily service-oriented one. To re-invoke the distinction between 'moral regulation' and 'family policy', the preference is for family policy in the sense of supporting
and facilitating the decisions that individuals make about their own relationships - in
essence, supporting the everyday morality of ordinary people. And indeed this is a

133. This review, conducted by the Women and Equality Unit at the Department of Trade and
Industry, resulted in the publication of a consultation paper in June of 2003. in which the
government sought comments on its proposals for a civil partnership registration scheme; see
above n 114. A period of consultation then followed, with the government's Civil Partnership
Bill subsequently being introduced into Parliament on 30 March 2004.
134. Civil Partnerships Bill, cl 31.
135. Ibid, cl 32.
136. Glennon, above n 27. at 143. n 8.
137. Lady Justice Hale, DBE 'The way forward' in Thorpe and Clarke, above n 43, pp 143147 at p 146.
138. P Mansfield, J Reynolds and L Arai 'What policy developments would be most likely to
secure an improvement in marital stability' in High Divorce Rates: The State of Evidence on
Reasons and Remedies Lord Chancellor's Department Research Series, no 2/99, vol 2 (London:
Lord Chancellor's Department, 1999) pp 1-46 at p 33.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars


Legal Studies, Vol 26 issue 2

position around which a strong degree of consensus has built up among practitioners,
professionals and a number of academic commentators.
The legislative compromise that was adopted by the 1996 Act reflects an inability
or unwillingness on the part of reformers to confront idealist conservatism with either
a thoroughgoing defence of diversity or the reality of the limited capacity of states
to legislate for morality. The 2004 Act may be seen as the beginning of a challenge
to those who wish to subordinate individuals to the values of marriage and the
traditional family, in that it represents an opening up of the gateway to the 'family at
law' in order to admit same-sex couples. However, the 2004 Act failed to go a stage
further in the sense of recognising both the inherent logic of no-fault dissolution and
the limits of legal regulation when intimate relationships break down. In 1996 we
were not prepared to recognise what Cretney terms the 'simple truth': namely that
the decision as to whether or not a marriage should be dissolved is one for the parties,
which the state is not in a position to question. 4 The 2004 Act offered the chance
to acknowledge that, in this context, the role of the law should be confined to ending
relationships in the best possible way, and resolving the accompanying practicalities.
As such, it represents a missed opportunity both for civil partners and, ultimately, for
the prospects of future divorce reform.

139. See, for example, Thorpe and Clarke, above n 43.

140. See Cretney, above n 19, p 391.
2006 The Author. Journal Compilation 2006 The Society of Legal Scholars