Divorce: Whose fault is it anyway?

This week has seen the potential ‘Divorce, Dissolution and Separation Act 2020’ make it’s way through a Second Reading in the House of Commons. For the uninitiated or uninterested, this means they have agreed the idea in principle, and now begin to look in detail at the contents in the Committee Stage. It is now four stages away from becoming law having already been through this process in the House of Lords where it originated. But it throws up big questions. In a nutshell, it seeks to bring in a statement that your marriage has ‘broken down irretrievably’¹ as a grounds for divorce. There are currently five grounds for divorce: adultery (this means actual sex, not an emotional or otherwise physical affair); unreasonable behaviour; desertion (left against your will); separation of two years where both parties agree; and separation of five years where one party wants to divorce.

Valid questions are being asked. Isn’t someone usually to blame in divorce? Are we just making it easier to divorce? Can people now just get a quickie divorce because they’ve decided they don’t want to be married anymore?

Before we begin to delve into these questions, it’s interesting to look at what was said in the actual discussion on Monday. Robert Buckland, Secretary of State for Justice, gave this introduction in the Commons on the 8th June 2020:

Marriage will always be one of the most vital institutions in our society, but we also have to face the sad reality that marriages sometimes breakdown. No one sets out thinking that their marriage is going to end. No one wants their marriage to break down. None of us is therefore indifferent when a couple’s lifelong commitment has sadly deteriorated. It is a very sad circumstance, but I believe that the law should reduce conflict when it arises. Where divorce is inevitable, this Bill seeks to make the legal process less painful, less traumatic. It does not, and cannot, seek to make the decision to divorce any easier. The evidence is clear that the decision to divorce is not taken lightly or impetuously. Indeed, it is typically a protracted decision based on months, if not years, of painful and difficult experience and consideration. The sad reality is that it is often too late to save a marriage, once the legal process of divorce has started. Once that decision has been reached, the parties need to move forward constructively. The Bill focuses on that very legal process.²

The Hansard (written record) of the discussion is interesting, MPs contemplate and question whether we should allow marriage to dissolved so ‘easily’, whether more support for marriages in trouble, a longer time frame and better pre-marriage counselling would not be better. These are all essential points. They all need consideration and we would be wise to encourage those around us to attend pre-marital courses, counselling and to consider their options before rushing into divorce.

However this Bill to me, seems not to hinder any of these points, as summed up by Mr Buckland again.

Allegations made in a divorce petition by one spouse about the other’s conduct give no advantage in any linked proceedings about arrangements for children or financial provision for a spouse, yet the current law can perversely incentivise conflict. It requires an applicant for divorce or for the dissolution of a civil partnership to provide details to the court of the respondent’s unreasonable behaviour if their circumstances mean that they need to divorce before a two-year separation period. The incentive at the very start of the legal divorce process to attribute blame can only serve to antagonise parties at the most difficult time in their lives.²

The ‘Divorce, Dissolution and Separation Bill 2020’ seeks to avoid apportioning blame by giving the opportunity to state that the marriage has ‘broken down irretrievably’ in their divorce petition. It seeks to reduce the conflict by insisting upon fault being allocated. But, some might argue, there is blame, and this is often true, but how helpful is to state it on the forms? In my own book I share how I didn’t want a bitter divorce, and I felt I should divorce in the same spirit in which I had married, but how easy is this to do in practice?

In our case, we divorced through the ‘unreasonable behaviour’ channel, which required a detailed list of said unreasonable behaviour. Reading back through times your ex-spouse has met and engaged with someone who isn’t you in a physical and emotional relationship is about as much fun as it sounds. Rewriting it to make sure it includes enough evidence, dates and fills in the gaps they appear to have conveniently forgotten so that you feel sure the judge will grant the decree nisi is even more gut-wrenching. Unsurprisingly it does nothing to engender a feeling of goodwill towards your ex, and stirs up bad feeling as you wrangle over the choice of five options to end your marriage; either one of you admits guilt, or the process drags on for two years of separation, before you can even start proceedings, so that you can avoid blame. The very idea that you can be separated for two years than agree to divorce presupposes you have the resources to live separately while amicably agreeing to the division of money, property and childcare…I can count on one hand the number of people this has been possible for (and I’m not sure I know of any couples with children who’ve managed it).

Being able to divorce without apportioning blame and creating further conflict has many positive merits. Perhaps couples might be able to work towards a swifter resolution, or focus on what is best for their children rather than their blame and bitterness for one another. Perhaps there simply isn’t a ‘reason’, they just both feel their marriage has run its course. Yet the nature of the current divorce process in anything quicker than two years pits you against one another from the off. Indeed a 2018 study by Slater and Gordon found that ‘three in 10 bent the truth about adultery, unreasonable behaviour or the length of separation to guarantee their divorce petition wouldn’t get blocked under the current system, which requires couples to find fault.³’ Other facts included 42% claiming the process upset their children and over a quarter of people feeling the process left them with bitter feelings towards their ex, ‘dashing their hopes of keeping the break-up amicable’. Hardly a helpful scenario when we need people to work together to find a financial settlement and to rebuild their lives in the best interests of their shared children.

The Bill states that it will be 6 months from application to Decree Absolute (the final paperwork), so it’s definitely not a quick process, just slightly quicker. There are always six weeks between the decrees nisi and absolute. ‘Nisi’ literally means ‘unless’, so ‘unless’ you prove you want to stay married, you will then be divorced. It does offer six weeks for cooling down, reflection and an opportunity to reconcile if you really want to. I remember being surprised to discover that the final paperwork of the decree absolute is literally just that – a piece of paper; I was expecting a certificate at least. It doesn’t have anything about the reasons we divorced or the process we took. In fact, there’s more on there about our original marriage than our divorce. So while the apportionment of blame may be necessary in some cases, in others it simply isn’t going to help any resolution be reached.

Giving the opportunity to two people to work together in relative harmony and agreement to end their marriage, as they have hopefully done throughout, seems like a positive situation for many family members. Was my marriage everything I wrote into that tiny box to end my marriage? No. None of the good times or positive experiences featured. Your marriage ends in a sour taste, actively encouraged through the legal system. Ending your marriage through its irretrievable breakdown is no less sad than the former, in fact I’d argue it feels sadder. It states that it’s likely there’s no way back, so let’s do this in the best way possible.

¹ https://publications.parliament.uk/pa/bills/cbill/58-01/0125/cbill_2019-20210125_en_2.htm#pb1-l1g1 – Content of the Bill at Second Reading (Commons)

² https://hansard.parliament.uk/commons/2020-06-08/debates/09B51B40-1E0B-4513-877D-CF836DB67F75/DivorceDissolutionAndSeparationBill(Lords) – The Hansard (verbatim report) of discussions in Parliament from Monday 8th June 2020.

³ https://www.slatergordon.co.uk/media-centre/press-releases/2018/08/divorcing-couples-admit-to-exaggerating-foul-play/

3 thoughts on “Divorce: Whose fault is it anyway?

  1. Thank you for this. My parents’ marriage ended in 1989 for “irreconcilable differences” (in the U.S.), and they remain good friends–real friends who spend time together and share joys and sorrows, and care deeply about each other. Had the divorce proceedings required blame be apportioned, this might not have been the case. I know that my life is better for having parents who continue to communicate well and be generous to each other, despite divorce. I hope this becomes possible in the U.K. as well. Warm regards,

    Liked by 1 person

    1. Thank you for sharing your experiences. Credit to your parents for maintaining a wonderful relationship that enables you to be close to them and for them to be close to one another.
      We can divorce for unreasonable behaviour but that is not quite the same and requires a description of said behaviour. It is possible to live separately for a time and divorce without blame but that is between 2 and 5 years.

      Liked by 1 person

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