‘It is now time to make no-fault divorce the default position in law’. Discuss.

Lady Hale, In the case of Radmacher vs Granatino states that ‘Marriage is of course,
a contract. Each party must agree to enter into it and once entered both are bound
by its legal consequences. But it is also a status. The parties are not entirely free to
determine all its legal consequences for themselves, the law of the land laws down.
Their marriage also has legal consequences for other people and the state’.

Though this is worth noting, statistics have established that some marriages do not
last. This disintegration of the marriage can be due to parties becoming unhappy
with the relationship or triggers such as domestic violence and adultery. The
eventual decision to end the marriage by law is known as ‘divorce’.

To understand the benefits of establishing a no-fault divorce, one must look at the
current laws. The current law in the UK dates back to the Divorce Reform Act (DRA)
1969, which was later consolidated in the Matrimonial Causes Act (MCA) in 1973.
According to this legislation, the sole ground for divorce is the irretrievable
breakdown of marriage.

Irretrievable breakdown must be established under one of 5 facts. Three of these

facts are fault-based ; Adultery, Behaviour (which is a combination what was once
two elements, cruelty, and incurable insanity) and Desertion. The remaining 2 facts
are based on a period of separation. Two years of separation with the consent of the
respondent for divorce and 5 years of separation prior to the petition for divorce.

Once a fact has been proven, there is a strong presumption that irretrievable
breakdown will be established , as stated in Section 1(4) MCA 1973. However, both
irretrievable breakdown and one of the 5 facts must be established. Even where it is
accepted that the marriage is damaged beyond repair, one of the facts must still be
established.

This was reaffirmed in the case of Owens v Owens 2017, a rare defended divorce
case, where the trial judge accepted that the husband was ‘deluding’ himself that his
wife would return to the marriage. The Court of Appeal eventually upheld the
decision, agreeing with the husband that behaviour had not been made out in the
presented evidence.
The DRA 1969 represented a major turning point in the laws concerning divorce in
England and Wales as it introduced a new concept, a no-fault route to Divorce. This
new concept included cases where a ‘wholly innocent’ spouse could be divorced
against their will if the 5-year separation fact were established.

The 1969 Act was preceded by a significant change made by the Church of England
in the mid-1960s. The historic commitment to the doctrine of ‘Matrimonial offence’
was overturned, with irretrievable breakdown being proposed as the sole grounds for
divorce.

In many aspects, the Act was rooted in a lengthy history of fault-based divorce. Prior
to 1857, the Church courts determined the laws of divorce. The Norfolk’s Act of 1700
established that a Private Act of Parliament had to be obtained, a costly procedure
which was inaccessible to many , and this was a decree of nullity as opposed a
divorce, which was not available through court. The MCA of 1857 granted the
judicial order of divorce but matrimonial fault in men and women were treated
differently. A husband may be granted divorce based on the wife’s infidelity but it did
not apply in the reversed situation. The Matrimonial Causes Act of 1923 and 1937,
respectively established a formal equality where both partners could apply for
divorce based on the other’s infidelity and added to adultery the grounds of cruelty,
desertion of more than 3 years and incurable insanity.

The DRA 1969 established the irretrievable breakdown and 5 facts which were
consolidated in the MCA 1973 and is the current law. Though the Family Law Act
1996 was passed, which sets out a complete reformation of the law, this Act was not
implemented.

Though the MCA 1973 is the law at present, Parliament has indicated that the Act
needs reformation. Attempts of reformation started with the Booth Committee Report
of 1985 which argues that defended divorces led to increased bitterness and
disappointment for the parties concerned. It was argued that parties should resolve
their issues amongst themselves in private and that court disputes should be
minimum.

The Law Commission Report 192 suggested significant reformation of the law.
Criticisms of the present law were made evident. The present law is deemed
confusing and misleading. The confusion can be attributed to the fact that though
irretrievable breakdown is the sole ground, one of 5 facts must be proved. The law
requires the parties to cite their cause for the breakdown of the marriage within these
5 facts which may not be the actual cause of the breakdown. The current law is
discriminatory and unjust as the grounds of 2 years separation is not available to all,
due to inability to afford separate housing which leaves only fault-based facts or 5-
year separation as an option. The current law also gives way to unnecessary
hostility and bitterness. The system encourages fault-based facts as it is quicker to
process. In the making of the allegation, the parties may be subject to distress,
bitterness and humiliation. It requires scrutiny of the negative aspects which may
destroy any chance of reconciliation. The current law does nothing to save the
marriage as the focus must be on the allegation rather than saving the marriage.
The current law also makes the situation for any children of the divorcing couple. The
children suffer more if the parents are in conflict. The law does not reduce conflict
but may cause more conflict due to the focus on a party’s blameworthy conduct.

The tactical use of divorce is not a new concept. The history of divorce in England
and Wales is full of examples in which parties manipulated grounds to achieve a
divorce. As Chester and Streather found, in reference to the MCA 1937, ‘whatever
the client’s reason for wanting divorce, the lawyer’s job is to discover grounds. Sir
James Munby noted, in the case of Owens v Owens that many hold the view that law
is ‘badly outdated, indeed antediluvian’. This case also attracted considerable
attention with the majority of the opinion that the law needs reformation.

The current law is now nearly 50 years old and has not kept up with significant
changes in family life and family law since the late 1960s. The Family Law Act
resulted from the Law Commission reports but the abandoning of the FLA 1996
contributed to this lack of reformation even though there have been significant
changes in procedure.

The pressure to reform is now on the rise. The Divorce and Dissolution Bill 2019-20
was dropped due to the Dissolution of Parliament in November 2019 but was
reaffirmed that it will be reconsidered in the Queen’s Speech the following month. If
the Bill is passed, the law will see significant reformation including the introduction of
no-fault divorce. It replaces the need to establish one of 5 facts and involves a
notification process with statements from the concerning parties. The Ministry of
Justice’s move to introduce no-fault divorce is consistent with international trends
and also aims to take away the defending of a divorce except in situations which
concern matters such as jurisdiction and where the validity of the marriage is in
question. Thorpe LJ argues that ‘no fault divorce is the highest legislative priority for
the family justice system’. Though widely supported, there are criticism against this
approach.

It is criticised on the grounds that it does not deal with the concerning issues of the
parties as to some, justice is the acknowledgement of the other’s fault. It is also
suggested that ignoring fault would make the proceedings more acrimonious. It is the
duty of the law to uphold values of society and wrongdoing must be appropriately
punished, including wrongdoing in marriage. Another argument is that it undermines
marriage as it permits the end of a marriage at will, with no regard for marriage being
a life commitment, as argued by Rawthorn.

There are many advantages of a no-fault approach. If one spouse wishes to divorce,
there is little value in forcing the continued marriage. There is no point in an ‘empty
shell’ marriage. Psychologists have also shown that it negatively impact children in
such homes. It is argued that the right to divorce is now a human right. Forcing a
marriage against their will infringes the right to marry and right to family life, though
the ECHR makes it clear that it does not include a right to divorce as in the case of
Johnston v Ireland. Another benefit is that no fault divorce reduces the bitterness of
the situation. The lack of blame allocation is also a benefit as it is a difficult task to
determine blame in a situation where the couple are often the only 2 witnesses.

Having noted the complexity of state role during divorce, there are concerns that
making divorce simpler would undermine marriage. The current law however causes
a tedious, costly and bitter dispute. The issue is complex, as divorce can be harmful
but is it worse than an unhappy couple is a subjective issue. In light of the current
society and international trends, as well as the beneficial aspects of no-fault divorce,
one can argue that now is the time to make no-fault divorce the default position in
law.

(1570 words)