The good news is your divorce isn't your fault


By Daniel Russell

The weekend brought news of a momentous occasion in divorce law, with an announcement from the Government that it’s intending to end the need for one spouse to be deemed at fault in a divorce.

 Whilst this came a little late in the day to spare the blushes of former Foreign Secretary Boris Johnson, whose dirty laundry was publicly pegged out across a line of red tops in the preceding week following the announcement of his split from wife Marina, the intentions of Justice Secretary David Gauke were nevertheless the subject of celebration in many quarters.

 Calls for changes in the divorce laws that apply in England and Wales have been growing in both number and volume for a good many years. Words like archaic have been trotted out to describe them.

The fact that in order to be granted a divorce it is frequently necessary to point an accusatory finger in the direction of one spouse or the other and cite their marital transgressions elicits a good deal of eye-rolling, tutting and breath-sucking among ordinary folk who can’t quite understand what place such a system has in contemporary society.

In the absence of fault-based facts – adultery, behaviour or desertion – a couple must have demonstrated that they have lived apart for two years (five, if one of them would actually really rather prefer not to be divorced) in order to sidestep need for fault to be established. 

The simple fact is that if adopted into legislation, the proposed amendments announced by David Gauke at the weekend will be the first changes to our divorce laws since the Divorce Reform Act of 1969.

To put that into chronological context, the last time change to the divorce laws was considered, Neil Armstrong was just a bloke who worked at NASA.

It’s not always the case that the couple involved in the break-up of a relationship are simply itching to be rid of one another, so conflict isn’t always a factor when a marriage ends.

Further, insisting on establishing blame (and, therefore friction) where none exists does little to help courts that have been working hard in recent years to remove conflict from divorce wherever possible.

Not every couple is at each other’s throats. Indeed, the decision to end a marriage is often made amicably and it’s the process of deciding who is to blame and why that begins to pick at otherwise perfectly civil relationships.

None of which acknowledges the thorny issue of the children who might be caught in the centre of a marriage that is slowly but steadily swirling into the plughole.

There is perhaps something galling in the knowledge that a marriage can be made by mutual consent but cannot be unmade in the same way; that one party in the contract must forever, in law if not in reality, be stigmatised for the failure of a relationship in which two people actually contributed to its break down.

And if both spouses, in a final show of unity, steadfastly refuse to apportion blame? The only other recourse available if they want to dissolve their marriage is for them to live apart. Viable, perhaps, when there are no children in the mix, but harder to explain to your offspring when you’d rather be trying, as many couples do, to preserve some semblance of normality until the divorce is finalised.

In the end, it’s right that divorce should require effort and some element of emotional hardship. Making marriage a tuppeny-ha’penny affair that can be expunged from your life with the flourish of a pen the moment the going becomes tricky cheapens the union marriage represents, regardless of your religious beliefs on the matter.

But neither should it be an obstacle course that belongs a society of the sort foretold by George Orwell. Once the decision to divorce has been made and the facts have been established as reasonable, it’s in the interests of all concerned to make the process as swift as possible and with minimum conflict.

The Rt. Hon. David Gauke has yet to consult on his proposals. As long as he doesn’t have a mind to turn it into a referendum, the outcome shouldn’t be in doubt. And even if he did, Boris would still appear certain to be in the camp that’s for leaving.

All references to divorce in this article refer to the law as it applies in England & Wales

Mark Norman