Action Alert: Respond to government's consultation on reforming divorce laws

Published: December 3rd, 2018

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- Family and Sexual Ethics

The government is consulting on reforms of the legal requirement for divorce. The key proposal is to enable divorce to take place without any ‘fault’ so that one party can unilaterally impose divorce on the family with no reasons provided.

Christian Concern has produced the following linked report detailing the arguments and reasons why it is important to retain the concept of ‘fault’ in divorce law: ‘No-fault’ divorce: the new divorce proposals for changing the law relating to marriage and other domestic relationships.

We believe that the reforms will significantly undermine marriage, leading to increased family breakdown and a further decline in the marriage rate, and that this will be harmful for children and for society at large.

The deadline for submissions to the consultation is Monday 10 December 2018.

If you're ready to respond you can go straight to
the response page using the button below.

We suggest answering the most important questions: 1, 2, and 8.

Respond to the consultation

Otherwise read on for our quick guide to responding.

Current law

Under the current law, a divorce cannot be issued unless the marriage has broken down irretrievably. In order to establish whether the marriage has broken down irretrievably, one of five facts need to be established:

That the respondent has committed adultery and the petitioner finds it intolerable to live with them
That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent
That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition
That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted
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

The government is proposing to replace these five facts with a ‘notification process’ whereby one partner can notify the court if intention to divorce which will then be automatically granted after a period of time. This amounts to unilateral divorce for no reason.

Consultation Questions

1. Do you agree with the proposal to retain irretrievable breakdown as the sole ground for divorce?

Answer: Yes

Irretrievable breakdown should be retained as the sole ground for divorce.

The five facts used to establish whether irretrievable breakdown has taken place should also be retained.

Suggested points to make in your own words:

Marriage is a serious commitment which benefits both parties and any children that may ensue. If we make it easier to exit a marriage, then we undermine the nature of marriage and the level of commitment involved.
Marriage should be supported and encouraged by the government because of its benefits to society. Weakening marriage only serves to disincentivise marriage and weaken the institution which will harm children and society.
There should still be a requirement to provide a reason why the marriage has broken down, otherwise it is not really the case that irretrievable breakdown is being retained as the sole ground for divorce.

2. In principle, do you agree with the proposal to replace the five facts with a notification process?

Answer: No

Divorce should only occur because of a serious and substantive reason.

Suggested points to make in your own words:

The proposals undermine the nature of marriage.

Under this proposal, marriage would essentially be the only contract that can be broken unilaterally without citing any fault by the other party and with no adverse consequences for anyone ‘wanting out’.
Proposals to make marriage more like cohabitation where one partner can just exit the relationship with no reason are likely to increase further the prevalence of family breakdown.
No reason divorce undermines the seriousness of the decision to end a marriage which carries consequences for the whole family and also for the rest of society.
So-called ‘no-fault’ divorce gives the impression in law that marriages break down all by themselves as if it is the fault of marriage as an institution, rather than the fault of one or other of the marriage partners. This reinforces in law the expectation that relationship breakdown is common and occurs for no good reason.

The proposals will harm children the most.

People like to know why something is happening. If there are no reasons given this can be more stressful for the parties involved than having a clear explanation and reason for the separation.
Studies show that children suffer from divorce and that they suffer more when no reason is given as then they are more likely to blame themselves. No-fault divorce will harm children the most.

The proposals will put vulnerable people under pressure.

The proposed unilateral divorce puts vulnerable people under pressure and at risk of exploitation. For example, a partner could say: “I am not looking after you now that you are infirm/ill. Pay me my share of the assets so that I can start again while I have the chance.” The weaker party will have more to lose, and the stronger party will be able to enforce divorce for no reason.

The proposals prevent attribution of fault

Removal of ‘fault’ means that a wronged spouse has no ability to publicly assert the wrongs committed. Instead the transgressor is just able to walk away with no admission of guilt which amounts to a denial of natural justice.

The proposals do not have public support.

Removal of fault for divorce is not supported by the public. The Nuffield Foundation report, ‘Finding Fault’ found in its national opinion survey that 71% thought fault should remain part of the law. It also found that the weight of opinion was in agreement with the view that having to assert fault “would help people to think through whether divorce is really the right thing to do.” 56% agreed that if someone has done something wrong towards their spouse then that should be given as the reason for the divorce, with only 12% disagreeing.¹

The proposals will lead to increased divorce rate.

Academic studies have shown that there is a sharp upward movement in divorce when divorce is made easier. Substantial declines in marriage rates are also recorded everywhere following easier divorce. This belies the notion that liberalising divorce requirements will have no effect on marriage rates or divorce rates.²