No Fault Divorce

Richard Bacon Excerpts

Tuesday 13th October 2015 Commons Chamber

[Mr Richard Bacon (South Norfolk) (Con)]

I beg to move,

That leave be given to bring in a Bill to make provision for the dissolution of a marriage or civil partnership when each party has separately made a declaration that the marriage or civil partnership has irretrievably broken down without a requirement by either party to satisfy the Court of any other facts; and for connected purposes.

I am pleased to request the leave of the House to bring in a Bill to provide, during the court proceedings to dissolve a marriage, for the option of divorce without blame, often called no fault divorce. Let me begin by saying that I do not wish to make divorce “easier”, because I do not think divorce should be easy. Currently, one can get divorced in just five months, so what is called “quickie divorce” is already available. A couple wishing to take advantage of my proposal would take somewhat, but not inordinately, longer to get divorced—probably one year—but without any requirement to throw mud at each other, as is currently the case, and with more time for reflection on whether divorce was what they really wanted for themselves and their children.

Divorce is a tragedy. It would be better for us all if there were more stable and successful marriages and, as a consequence of that, fewer divorces. Indeed, just as the wedding ceremony states that a marriage is not to be taken in hand “unadvisedly, lightly, or wantonly” but rather “reverently, discreetly, advisedly”, so, at least in my opinion, should divorce only be countenanced in the same way, after the most profound reflection.

In English law, the only ground upon which a petition for divorce may be presented to the court by either party to a marriage is that the marriage has broken down irretrievably. Under the Matrimonial Causes Act 1973, the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner seeking a divorce satisfies the court of one or more of five facts: that the respondent has committed adultery; or engaged in unreasonable behaviour; or desertion; or that the parties to the marriage have been separated for a continuous period of at least two years and the respondent consents to a decree being granted; or that the parties to the marriage have been separated continuously for at least five years.

The law did at one time, and quite recently, provide for a type of divorce known as no fault divorce under part 2 of the Family Law Act 1996, but this was never fully implemented. The provisions at the time were intended to achieve two ends: first, to save saveable marriages; and, secondly, to reduce distress and conflict when a marriage did need to be dissolved. However, that legislation had a difficult passage through Parliament. That was in part because of a lack of enthusiasm on the part of many—and opposition on the part of some—of the Government’s own supporters at the time. According to a House of Commons Library note, 112 Conservative Members voted against the Government in a free Commons vote on the retention of fault-based divorce. In order to save the Bill from defeat, the Government of the day had to accept 137 amendments in the Commons. Many amendments had already been made in the House of Lords.

Some of the amendments reflected concern about the need to uphold the institution of marriage. Others were intended to ensure that the possibility of reconciliation be fully explored by the increased use of counselling and marriage support. Yet others reflected the wish that the interests of children should be given greater protection. The result was that what had started as a simple process became exceedingly complex. Indeed, the Labour party’s spokesman on the Bill in the House of Commons, the right hon. Paul Boateng, who is now in the other place, is said to have described the Bill as a “dog’s breakfast”. Although it passed on to the statute book as the Family Law Act 1996, the implementation of the new scheme was delayed while certain aspects of it were piloted.

As it turned out, the proposals foundered on the concept of information meetings, which were an integral part of the policy. Those meetings provided, in one place, general information about marriage saving as well as the divorce process, but what people wanted was information that was tailored to their individual circumstances. Participants welcomed receiving information, but for most people the meetings came too late to save the marriage and tended to cause parties who were uncertain about their marriage to become more inclined towards divorce. Furthermore, in the majority of cases, only the person petitioning for divorce attended the meeting. In the end, most of the provisions in part 2 of the Family Law Act 1996 were never brought into force and have now been repealed by section 18 of the Children and Families Act 2014, after the then Government concluded that they were “unworkable”.

The law as it stands creates its own problems. According to research carried out by YouGov on behalf of Resolution, which represents almost 5,000 family solicitors, more than 27% of couples citing unreasonable behaviour admitted that their claims were not true but were the easiest way of getting a divorce. Plainly there is a public interest in the justice system not encouraging people to make things up. There is also a contradiction in the current law. Although the whole thrust of current policy is supposedly about taking disputes away from the courts and towards reconciliation, mediation and alternative dispute resolution, people seeking a divorce who wish to avoid apportioning blame often find themselves required by the law to follow a path they do not wish to take. In effect, they are required to throw mud at each other.

There is now a widespread view among lawyers that this issue should be revisited. In March 2012, Sir Nicholas Wall, then president of the family division, said at the annual conference of Resolution:

“My position is very simple. I am a strong believer in marriage, but I see no good arguments against no fault divorce. At the moment, as it seems to me we have a system—so far as divorce itself is concerned—which is in fact administrative, but which masquerades as judicial.”

Lord Justice Munby, who now heads the family division, echoed this point of view, stating that it was time to consider removing the need for a judge to oversee “divorce by consent”. Actually, I beg to differ somewhat from those learned judges. I would prefer that judicial involvement remained. I say this not simply because the marriage contract is a contract—which, of course, it is—and the courts should therefore have some supervisory role, in some circumstances. On that basis, one might argue that the supervision of the courts was not always required. After all, there are many areas of life involving a contract freely entered into by two parties where, if the parties wish to terminate the contract by mutual consent, they can do so without detaining the courts for one moment. However, if one party does not wish to terminate the contract, the protection of the courts needs to be available. The same is true in marriage.

I would go somewhat further. My own view is that the breaking of a marriage is a step of such magnitude—with such potentially serious consequences for the whole of society, not least for taxpayers—that, unlike in other contracts, the courts should have some supervisory role, however minimal, in all circumstances. I agree with Lady Hale, the deputy president of the Supreme Court, when she said:

“We should make it take longer to get a divorce and encourage people to sort out what happens to the home, children, money before, rather than after, they get a divorce.”

The conclusion I draw is that the previous legislation—however well-intentioned—was trying to accomplish too much. I propose one simple amendment to the law: the option of divorce without blame. A petitioner who wished to do so, rather than offering the court one of the five facts currently required—adultery, unreasonable behaviour, desertion, et cetera—could instead satisfy the court that a marriage had broken down irretrievably with a sixth fact, namely that both parties to the marriage had separately signed a declaration that the marriage had broken down irretrievably.

This declaration would by itself satisfy the court without the need to show any other facts. It would apply only when both parties had agreed and, consequently, signed such a declaration. It would not in any way alter—or, still less, abolish—the existing concept of blame. Those who wished to avail themselves of the other provisions of the law which require blame—which may sometimes, although decreasingly so, be a factor in financial settlements and arrangements for children— could do so. My simple change would mean that those who wished to avoid apportioning blame in a divorce could do so. The only other provision in my Bill would be a cooling-off period of one year before a decree of divorce could be made absolute, so that couples would have time to reflect on whether a divorce was really what they wanted.

I would favour easier access to counselling. I would also favour more discretion for the judge to inquire into the intentions of the couple and the extent to which they had sought counselling. I would not object to making some form of counselling mandatory. These are all desirable, but it is not necessary to deal with all of them at once or in one Bill. These matters could be dealt with separately, if at all. Any attempt to reform the law on divorce should be modest in its ambitions, simple to understand and simple to implement. My Bill would not deliver all that some of the more radical reformers wish to see, but it would provide a route for divorcing couples to reduce acrimony and tension during what is already a very traumatic process, if they wished to use it. It would be more likely to gain widespread consent, and I commend it to the House.