The long road to no-fault divorce

A major milestone in family law will be reached as the Divorce, Dissolution and Separation Act of 2020 comes into force on April 6^th, enabling no-fault divorce in England and Wales. Until now, divorce has been granted on the basis of ‘facts’ contributing to marital breakdown – e.g., adultery, unreasonable behaviour – and including substantial periods of separation (two years where both partners agree on divorce, five years where there was no agreement). Now, spouses will be able to file for divorce without citing a reason or blaming their partner, and, if they wish, they can file jointly. The new law also means that a petitioner can file for divorce without the respondent having the option of going to court to prevent it – the days of the contested divorce are over, in all but very limited technical circumstances.

And it is a famous case where one partner did not consent to divorce, which has contributed to the passing of the new divorce law. In 2016, the case of Owens v Owens gained widespread attention, when a Family Court judge ruled that although the marriage had broken down, the petitioning wife had failed to prove according to the law that her husband had behaved so as to make it unreasonable to expect her to stay. Subsequent appeals in the Court of Appeal and the Supreme Court agreed. In the eyes of the law, the threshold for granting a decree nisi on had not been reached. All the judges concerned recognised that this left the petitioner in a very difficult position, consigned to wait 5 years before being able to obtain a divorce, as her husband did not consent. This case gave impetus to an existing campaign for divorce law reform, so that such an unhappy result could not easily occur again.

Back in the 1990s, there was a previous attempt to introduce no-fault divorce which almost made it over the line. The Family Law Act of 1996 proposed a divorce process through which prospective divorcees would attend an information meeting, file a statement of marital breakdown, and then go through a period of reflection during which details of an eventual settlement could be considered. There was a lot of emphasis on the process as enabling the saving of ‘saveable marriages’.  However, pilots of the information meetings, which signposted mediation and raised the possibility of reconciliation, found that the intervention was essentially too late.  Couples were embarking on the divorce process when the possibility of marriage continuing had already been ruled out. The proposals were shelved, ostensibly because of the failure of the information meetings, but perhaps also because of the strength of a body of opinion opposed to no-fault divorce legislation, on the grounds that it weakened traditional marriage.

However, it’s long been clear that fault cited in divorce petitions may bear little relation to underlying reasons for marital breakdown. The old practice of arranging a weekend by the seaside so that one spouse’s adultery could be witnessed (as recently re-enacted on television in the period drama The Ipcress Files) illustrated the scope for collusion and hypocrisy in mid-twentieth century law. Some may currently use fault simply to get divorced more quickly than separation grounds allow. Research in the lead-up to today’s reforms showed that many divorcees disagreed with the fault attributed to them. This research also showed that a substantial majority of both petitioners and respondents in divorce cases thought that using fault had made divorce more bitter. There was no evidence that identifying fault acted as a deterrent to divorce.

The context has changed in some important ways since the last attempt at reform. Up until the 1990s, the divorce rate was rising, but the trend since then has been more uneven and largely downward. There is therefore less of a sense of a crisis to be addressed for those with traditional views. Furthermore, marriage rates are now lower, as people tend to marry later, and cohabitation and childbirth outside marriage have become more common and accepted. In this context, divorce is less of a hot button issue. Underlying these changes in behaviour, are long-term changes in values, encapsulated in changing attitudes mapped over recent years. A growing majority view cohabitation and marriage as little different from one another, and disapproval of divorce where children are involved has decreased. These changes have likely made the long-running campaign for no-fault divorce less contested this time. Rather than highlighting possibilities for reconciliation, the new law has been more framed as reducing conflict in the divorce process and encouraging amicable arrangements concerning money and children. The new legislation enforces a gap between applying for divorce and the ‘conditional order’ (formerly decree nisi) of 20 weeks, so the quickest possible divorce may actually be slower than previously. The nuts and bolts of financial settlement and arrangements for children face prospect of further changes in a Bill currently progressing through the House of Lords.  It’s here that some thornier issues around fairness in settlements may arise.

In a speech in 2019, Baroness Hale pointed out that the proposals in the Divorce, Dissolution and Separation Act (then Bill) bore remarkable resemblance to those outlined in the 1990s. The demand for no-fault divorce has been around for a long while. Perhaps the new Act provides an answer to the old exam question – does the law change behaviour or respond to changing behaviour? In the case of no-fault divorce, the law seems to have caught up eventually.

Why are we waiting?

Politics, the diplomatic service and the law – three establishment professions – have all been in the news regarding their promotion of women.

First came the controversy over the composition of Jeremy Corbyn’s Shadow Cabinet , which drew criticism because the top jobs shadowing ‘great offices of State’ were awarded to men: Shadow Chancellor, Shadow Foreign Secretary and Shadow Home Secretary. Although the Shadow Cabinet is majority female, many expressed dismay that women are in relatively junior posts.

This version of gender balance by numbers, but not status, is a persistent issue. There have been similar criticisms made regarding women on boards, where numerical gender equality has frequently been achieved by offering women non-executive roles rather than the more powerful executive positions.

By contrast, in the middle pages of the Economist (page 35 or behind the paywall), I read that the French diplomatic corps has attained a record share of female ambassadors – one third – and has paid attention to prestige as well as numbers. The current French ambassador to London is a woman, as are strategically important ambassadors in Ukraine and Pakistan. Meanwhile, here in the UK , 19% of ambassadors are women and we have never sent a female ambassador to Washington D.C. or Paris – although we do now have a woman ambassador in Beijing. How have the French transformed the position of women in diplomacy? In 2012 they set a target of 40% senior public offices to be occupied by women by 2018. Here in the UK, the Foreign and Commonwealth Office has been behind other government departments in terms of senior female appointments, reflecting a longstanding male dominance. The marriage bar was only lifted for female diplomats in 1973. Like senior politicians and lawyers, senior female diplomats are less likely to be married and/or have children than their male counterparts. In recent initiatives, the Foreign Office has addressed issues of work-life balance creatively by offering job-share postings to married diplomats, or by offering neighbouring overseas positions. These are welcome developments, but may not address wider diversity issues for those with spouses in different professions.

Meanwhile over in the law, Lord Sumption, a member of the Supreme Court, has expressed his views regarding gender equality in the judiciary. He is concerned that ‘rushing’ to achieve women’s equality in the judiciary could have ‘appalling consequences’ . A quarter of judges are currently female, and the proportion of women declines the further up the judicial hierarchy you go. Lord Sumption has suggested that the lack of women judges can be explained by women being perhaps less willing to put in the long hours : ‘as a lifestyle choice it’s very hard to quarrel with it’ he says. Analysis of women’s positon in the legal profession here and here suggests that there are issues of professional culture which can affect women, beyond any consideration of more flexible working patterns. Informal networking and mentoring are important for career progression, and are often less accessible and sustainable for women barristers than for men, in a profession full of senior men from a relatively narrow range of backgrounds.

Lord Sumption is reported as suggesting that we should be ‘patient’, and that it could take up to 50 years for there to be equal numbers of male and female judges; in politics we have reached the point where 29% of MPs are women, but it will take a further 50 years to reach parity at current rates of change. In this scenario, I can only quote Ambrose Bierce’s Devil’s Dictionary where ‘patience’ is defined as ‘a mild form of despair disguised as a virtue’.