Reforming our Divorce Law

Marriage will always be one of our most important institutions. It is vital to our functioning as a society, as we all know instinctively from our own lives and from the lives of family and friends. Rightly then none of us is indifferent when a lifelong commitment cannot continue, but it cannot be right for the law to create or increase conflict between divorcing couples. 

People going through divorce already have to face more than enough emotional upheaval without the conflict that can be created or worsened by how the current law works. 

I have reflected at length on the arguments for reform and on what people have said in response to the Government’s proposals. From my constituency advice surgeries I see how the attribution of fault leads parents to use their children as weapons in a continuing battle with their former partner. 

On Tuesday, a bill to reform our divorce law cleared its first hurdle in Parliament.  It responds constructively to the keenly felt experience of people’s real lives. While I am advocating more marriage advisory support to prevent divorce, I support this bill as I think that the end of a relationship should be a time for reflection, and not of manufactured conflict. 

It is 50 years since the Divorce Reform Act 1969 gave rise to the law we now have. It allows divorce only on the grounds that the marriage has broken down irretrievably. The court cannot hold the marriage to have done so unless it is satisfied on one or more of what the law calls “facts”. Three of the five “facts”—adultery, behaviour and desertion—relate to conduct of the respondent. The other “facts” are two years’ separation and five years’ separation, the difference being that two years’ separation requires both parties to agree to the divorce and the same applies to civil partnerships, except that the adultery fact is not available. But the “fact” that someone chooses does not necessarily bear any resemblance to the real reasons the marriage or civil partnership broke down. Those reasons are often subtle, complex, and subjective. Who, if anyone, was responsible is a question that can be answered honestly only by the people in the marriage. 

We are probably all aware of situations where a couple have sadly grown apart over time and jointly agree to divorce.  The current law does not allow them to do so unless they are first financially able to live apart for two years. They might be forced to present events in a way that serves the system; minor incidents become stretched out into a pattern of behaviour to satisfy a legal threshold, which then bleeds over into how a couple approach negotiations over arrangements for children and finances; or there may be a coercive relationship, where one partner is desperate to divorce but is too scared of the consequences of setting out the evidence of their partner’s unreasonable behaviour to the court. It should be enough that the relationship has irretrievably broken down. 

First published in the West Briton