- Do you agree with the proposal to retain irretrievable breakdown as the sole ground for divorce? You may wish to give reasons in the text box.
No. The Government’s single proposal for divorce reform is confused and inconsistent. Removing the requirement to prove either separation or fault to the court’s satisfaction means that there can be no objective assessment either that the marriage has truly broken down or that the breakdown is indeed irretrievable. Retaining this ground when it cannot be verified makes no sense at all, it is simply a sop thrown to the supporters of marriage.
- In principle, do you agree with the proposal to replace the five facts with a notification process? You may wish to give reasons in the text box.
No. The Government’s sole proposal is dishonest. This is not, as it is presented, the removal of fault from the process: there is already provision in the existing legislation for no-fault divorce. This is instead a proposal to introduce unilateral divorce under the guise of no-fault. Instead of removing fault, the proposal removes evidence of irretrievable breakdown, meaning that the petitioner has no need to prove the marriage has broken down irretrievably; the respondent cannot challenge the petition and the court cannot be satisfied either that the marriage has broken down or that it is irretrievable.
The government’s justification, that divorce is ‘costly and emotionally draining’, is not a good legal argument. The consultation presents a respondent’s right to contest as abusive, and presents marriage along familiar feminist lines as oppressive and coercive. It fails to imagine that there will also be cases where a petitioner may be abusive or coercive. Feminists like Liz Trinder view divorce as a positive good and a way by which a woman may leave an oppressive marriage, but not all marriages and not all divorces fit this stereotype.
The proposal simplifies the divorce process, making it easier to leave a marriage, as some have claimed, than leaving a mobile phone contract. That will inevitably have the effect of cheapening marriage, which is effectively defined by divorce law. Existing marriages will also be redefined, without the consent of the parties. The consultation is not honest about this. Marriage vows will also be cheapened, together with the intentions of those who make them.
Removing fault from the process removes any sense that adultery or other breach of the marriage vows is wrong or the potential cause of marriage breakdown, and denies the wronged party any legal remedy.
Making divorce easier is likely to increase divorce rates, and do nothing to strengthen marriage or commitment.
- Do you consider that provision should be made for notice to be given jointly by both parties to the marriage as well as for notice to be given by only one party? You may wish to give reasons in the text box.
Yes. For a very long time, the law refused divorce by consent on the grounds that marriage was a contract in which others had an interest: the children, other parties and society itself. Divorce reform has eroded this, allowing divorce to become an individualistic act, without thought or responsibility for others, and least of all for society. The proposed reform would complete this process, so joint notification would be the very least concession. Otherwise, this reform would bring about unilateral divorce whereby a petitioner could leave a respondent with no evidence adduced that the divorce was justified, and in cases where one party did not want the divorce or where one exercised power over the other, the proposal would risk severe miscarriages of justice. This reform could be most dangerous to vulnerable parties in a marriage.
- We have set out reasons why the Government thinks it helpful to retain the two-stage decree process (decree nisi and decree absolute). Do you agree?
No. The two-stage process was an 1861 innovation for which in an age of information technology there can be little continuing justification, provided the appropriate checks are made at the petition stage. Other jurisdictions have no such requirement.
- What minimum period do you think would be most appropriate to reduce family conflict, and how should it be measured? Please give your reasons in the text box.
The period between nisi and absolute was reduced from 6 months to 6 weeks and a day in 1996 and I can see no justification for increasing it back to 6 months. Arbitrarily delaying the divorce once the decision has been made can only create resentment and more conflict. The wheels of justice already grind very slowly and to introduce further delay serves no useful purpose.
How should it be measured? By clocks? I don’t understand the question.
- Are there any circumstances in which the minimum timeframe should be reduced or even extended? If so, please explain in the text box.
If the petitioner is not required to prove irretrievable breakdown and the respondent cannot contest the divorce, it is difficult to imagine any circumstances where delaying the process might prove necessary.
- Do you think that the minimum period on nullity cases should reflect the reformed minimum period in divorce and dissolution cases?
No. Nullity is a separate matter and there is no reason why the timescale should be the same, and again, no reason why an arbitrary delay should be introduced to delay the legal process further.
- Do you agree with the proposal to remove the ability to contest as a general rule? You may wish to give reasons in the text box.
Absolutely not. It is totalitarian to deny a respondent any right to contest a divorce. In a reformed process where a petitioner is not required to prove that the marriage has broken down irretrievably and the court does not need to be satisfied, a respondent should as a minimum be able to refute the petition. The consultation states that such a measure serves no practical purpose, but this is clearly not the case in the – albeit very unusual – case of Owens v Owens. To deny respondents access to justice merely because demand is low is not justice. Although the option to contest is rarely used, its existence and the current requirement to satisfy the court oblige petitioners to ensure that they have valid reasons for the divorce.
- Are there are any exceptional circumstances in which a respondent should be able to contest the divorce? Please explain these exceptional circumstances in the text box.
Yes. But they are for the respondent to determine, not the administrative process, and the court will then decide whether the divorce is justified.
- Do you agree that the bar on petitioning for divorce in the first year of the marriage should remain in place? You may wish to give reasons in the text box.
Yes. There is no reason why this should be affected by the other reforms proposed. To remove even this requirement would further trivialise marriage.
- Do you have any comment on the proposal to retain these or any other requirements?
Only as already provided.
- We invite further data and information to help update our initial impact assessment and equalities impact assessment following the consultation.
The consultation is limited in its outlook and in its examination of evidence. In presenting only one option for reform, it pushes the reader towards the government’s preferred solution. While most people would accept that some species of reform is necessary, this is coercive and manipulative. The evidence presented is carefully selected to support the government’s position.
The consultation places undue reliance on the report by Liz Trinder who is an active campaigner for no-fault divorce and not an open-minded witness. Her report is one valuable piece of evidence, but should not be regarded as definitive or irrefutable.
The consultation invites comparison with other jurisdictions in which it claims similar measures ‘work well’, but ‘working well’ is not defined, and other jurisdictions are not necessarily comparable. Conversely, it rejects adopting the Scots measure of reducing the 2-year and 5-year separation times to 1 and 2 years on the grounds that the jurisdictions are dissimilar.
Campaigners for no-fault divorce claim that there are no arguments for retaining fault, but this is untrue, whatever one may think of those arguments. The consultation continues this deception.
The consultation also takes a very narrow view of some matters, assuming, for example, that a respondent who contests a divorce is likely to be manipulative and coercive, but not prepared to consider that a petitioner for divorce may also be manipulative and coercive: a divorce process which cannot be challenged is far more likely to be abused than one that can.
The consultation is based on the premise that it is the method of divorce which creates conflict rather than the divorce itself, or the factors leading up to the divorce. There is no evidence for this.
It also assumes, falsely, that the harm caused to children by divorce is the result of conflict between their parents rather than by any other factor. Again, this is false, as conflict is a factor in only a minority of divorces, while a much larger proportion of children are adversely affected by divorce.
Given the negative impact of divorce on children, on the parties and on society, a responsible government would seek to encourage marriage and discourage divorce. To do the reverse is negligent and socially destructive. Pressure for marriage reform is driven by lawyers – and especially by Resolution, by the judiciary and by feminist academics: all people who potentially benefit from high divorce rates, which are currently falling, or who are dismissive of the value that marriage brings to children, spouses and society. There is much less support for reform – particularly of the nature proposed – from the general public, or from the married.