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Is it time for no fault divorce?

David Marusza, barrister, Harcourt Chambers makes the case for the introduction of no fault divorce.

 

David Marusza, barrister, Harcourt Chambers

Dorinda. But how can you shake off the yoke? your divisions don't come within the reach of the law for a divorce.

Mrs. Sullen. Law! what law can search into the remote abyss of nature? what evidence can prove the unaccountable disaffections of wedlock? Can a jury sum up the endless aversions that are rooted in our souls, or can a bench give judgment upon antipathies?

(The Beaux Stratagem, 1707, Act V, sc. IV, George Farquhar)


The divorce law of England and Wales is complicated and costly. Quite apart from the requirement of pleaded petition setting out which of "five facts" from s.1(2) of the Matrimonial Causes Act 1973 is relied upon in support of the ground for divorce, the initial and subsequent Court fees (let alone lawyers' fees) are considerable and bureaucratic.1 

This article seeks to pose some simple questions. Should the law of divorce in England and Wales be simplified and made less costly? Does it require judicial oversight by a judge? Is it fit for the twenty-first century?


History
Before turning to the present situation, we might usefully turn to some historical background for the sake of perspective.

No fault divorce, or at least divorce by consent, either by the husband or both parties, and indeed a desire for simplification of divorce law is not a new phenomenon. As early as 1644, John Milton, poet and statesman, and himself a party to an unhappy marriage, had cause to question the niceties of Canon Law on the subject in his pamphlet, On the Doctrine and Discipline of Divorce:

And it is a lesse breach of wedlock to part with wise and quiet consent betimes, then still to soile and profane that mystery of joy and union with a polluting sadnes and perpetuall distemper; for it is not the outward continuing of mariage that keeps whole that cov'nant, but whosoever does most according to peace and love, whether in mariage, or in divorce, he it is that breaks mariage least; it being so often written, that Love only is the fulfilling of every Commandment.

Milton's appeal was to charity. He asked why did Canon law make bind ill-suited spouses together (in the polemical language of his age) like:

"two carcasses chained unnaturally together ; or, as
it may happen, a living soul bound to a dead corpse"

And still later, in the Restoration period, in the coda to George's Farquhar's 1707 play, The Beaux Stratagem (in which one couple release each other from their marital vows, while another wed on stage) it is possible to sense frustration with the inflexible and complicated matrimonial law of the time:

Twould be hard to guess which of these parties is the better pleased, the couple joined, or the couple parted; the one rejoicing in hopes of an untasted happiness, and the other in their deliverance from an experienced misery. Both happy in their several states we find, Those parted by consent, and those conjoined. Consent, if mutual, saves the lawyer's fee. Consent is law enough to set you free.

It was not until the Matrimonial Causes Act 1857 that divorce was available to ordinary people; before that it had been a matter for men, and had required an Act of Parliament, and was hence not a low-cost affair. Many a reader will be familiar with the passage from Thomas Hardy's, The Mayor of Casterbridge where Michael Henchard, unhappily married to his wife, becomes drunk, and purports to sell her to a sailor at a Dorset cattle market. Such an incident reflects real reports, for instance this from a contemporary article:

'Selling wife. At Buckland, nr. Frome, a labring [sic] man named Charles Pearce sold his wife to a shoemaker named Elton for £5, & delivered her in a halter in the public street. She seemed very willing. Bells rang.' 2

Fortunately, a raft of legislation simplified and brought the law, albeit haltingly, up to date, including legislation in 1923, allowing the wife to petition on the ground of adultery, and in 1937, permitting divorce on the grounds of drunkenness, insanity and desertion.

In 1969, the Divorce Reform Act, piloted through the Commons by Leo Abse MP with the assistance of Alec Jones MP, who sponsored the private members bill, introduced divorce on the basis of two years' separation and the consent of the respondent.


Current law
The present basic law is contained in the Matrimonial Causes Act 1973 s. 1:

1 Divorce on breakdown of marriage

(1)     Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

(2)     The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say—

(a)     that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b)     that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c)     that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d)     that the parties of the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as "two years' separation") and the respondent consents to a decree being granted;

(e)     that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as "five years' separation").

(3)     On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.

(4)     If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to [section 5] below, grant a decree of divorce.

(5)     Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection.

(6)     Only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section.

The section applies to same sex married couples by virtue of ss. 1, 11 of and Schedule 3 to the Marriage (Same Sex Couples) Act 2013.

There is only one ground for divorce – that the marriage has broken down "irretrievably". However, this does not amount no "no fault divorce" as with the exception of two years' separation and consent, there is a flavour of fault to all of the five facts. Most practitioners would agree that a client desperate to divorce is unlikely to be happy with the prospect of quietly waiting out two years, not least as interim remedies ("ancillary relief"), including periodical payments may be required much sooner. It is, therefore, rather more common to rely upon "unreasonable behaviour."

In 1996, there were attempts, stemming from a Law Commission report, to include no fault divorce within Part II of the Family Law Act 1996. These were stymied at the time by opposition on the government benches. The proposals were not pursued by the then Lord Chancellor, Lord Irvine of Lairg.

Baroness Hale and the President of the Family Division, Sir James Munby, have recently both spoken out in favour of a simplified no-fault divorce mechanism. The BBC reported on 29 April 2015 the President stating that "no fault" would "bring some intellectual honesty to the system". He was critical of the "ritual" of a "bureaucratic, administrative process, albeit one conducted by a district judge". He cited the law of other countries where streamlined processes permitted divorce by "what one might describe as the register of births, marriages and deaths."

Baroness Hale has recently given interviews to the Evening Standard and the Times related to no fault divorce on the basis of a declaration of divorce and a one-year period until final decree.

The present system is costly, cumbersome, and a poor use of Court time. Quite how it can be (in the words of FPR 1.1) "allotting an appropriate share of the court's resources" for District Judges to be considering petitions (which are sometimes regrettably lengthy documents) as "box-work" is questionable. Moreover, as many commentators have pointed out, quite literally "fault-finding" as a prelude to mediation or contested proceedings in relation to financial remedy proceedings, or the often inevitable Children Act proceedings, can be in the interest of saving time and limiting the more litigiously inclined of clients, is hard to see. It is far more likely to be deeply counter-productive and store up a reservoir of grievances where they might not otherwise have existed.

As an aside, it does not help that a litigant in person or lawyer navigating their way through the process is now directed to Part 7 of the FPR 2010 (as amended) on the "Procedure for Applications in Matrimonial and Civil Partnership Proceedings" which adopts terminology absent from the 1973 Act and is different from that of the current Court Forms (litigants in person will look in vain for "an application [form] for a matrimonial order" when they actually need a "D8 Divorce/dissolution/(judicial) separation petition.").

The present law is expensive, bureaucratic and unduly complex. It does not improve outcomes for litigants. It has the potential to engender resentment and further strife where none is needed. In the writer's view, it is in dire need of modernisation.

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1 £410 for the issue of a petition, £95 for amendment, and £155 for an application for Decree Nisi (Family Proceedings Fees Order 2008). It is difficult to view this as any more than either revenue raising or policy-based deterrent.

2
Winfield, Christine, "Factual Sources of Two Episodes in The Mayor of Casterbridge (Nineteenth-Century Fiction 25 [1970], 224-31. [p. 328]).

3
BBC news website.