The Old Law, New Law and the State: An Overview of Divorce Reforms
Author: Ezgi Sahbaz – SOAS, University of London
Introduction
“Divorce is of no concern to the state; it is a private matter between the spouses and the law should simply allow parties to end their marriage by agreement”.
The implementation of the Divorce, Dissolution and Separation Act 2020 (DDSA) has paradoxically transformed English law from its most conservative stance to the most liberal position on the spectrum. Widely acknowledged as the most substantial transformation in divorce law in more than fifty years, this shift follows the high-profile Owens v Owens litigation; departing from martial fault, the requirement of evidence, lengthy separations and eliminating the option to contest an application.
The process of divorce cannot be discussed in the absence of the role of marriage. The traditional view maintains the family as ‘a cornerstone of a strong society’ and marriage as ‘the glue that holds families together’ whereby a stable environment is created for children to thrive, and the benefits of marriage are not on an individual basis but to society as a whole. While marriage still remains a core principle, many commenters on family law today suggest that parenthood has become the heart of family law instead, and that marriage now holds lessened legal significance. Consequently, it is no surprise that the law on divorce has changed, and the reforms are said to be in line with what the majority of society would expect.
The role of the State in the dissolution of marriage has relocated from rigorously overseeing divorces and permitting them solely on the basis of valid reasons, to a system where divorce is primarily at the discretion of one party while the legal system takes on a record-keeping role. Concerns in opposition the reform have ordered strong State intervention in family life, arguing for the promotion of stability where the Government have an interested in helping couples stay together. Consequently, this prompts an inquiry into the implications in divorces becoming a private matter, and whether there is a public interest in supervising and regulating the divorce process.
Part I will offer a brief examination into the significance of marriage and divorce and the State’s interest in its regulation. Part II will then detail the failures of old law – the Matrimonial Causes Act 1973 (MCA) – in promoting the institution of marriage and posing a real benefit to society, leading to Part III, emphasising that no-fault divorces are the way forward. In investigating the theoretical issues surrounding the recent reforms to the law of divorce, this study will conclude that the privatisation of divorce matters through the 2020 Act is welcomed as a step in the right direction in meeting ever-changing societal demands. Additionally, contrary to debate, such reforms will not work against the State’s interest in supporting marriage any more than previously, and meaningful improvements to the rate of divorce should not be sought in the focus of the breakdown of marriage.
Why Would Divorce Law Ever be of Interest to the State?
The extensive criticism towards the MCA focused primarily on the practical problems caused by fault. However, these arguments form part of a wider theoretical question: whether the state should regulate divorce by demanding proof of reasons at all. This ideological question about the relationship between the State and families regarding the extent to which people ought to have autonomy over personal relationships draws upon another significant issue: that regulation represents public interference – thus, it is paramount to query whether such interference is justified.
Historically, marriage was a concept that was a religious sacrament; with increased secularisation, this has become less significant. Commenters in family law have acknowledged that we have progressed onto a new society where personal happiness is paramount and children are to adapt to variable new household structures. Nonetheless, the implications of family breakdown run deeper than that on the surface, where ‘broken families’ are a cost to society both emotionally and financially.
The overall cost of family breakdown has been variously estimated at between £20-40 billion annually; nonetheless the real concern is towards the children of these homes.9 For years, divorce has been associated with harm to children, including educational attainment, increased drug and drink use, psychological harm, poorer employment opportunities and an increased likelihood of relationship breakdowns themselves.10 In opposing the DDSA reform, the UK’s position as the country with one of the highest levels of family breakdown in the developed world was underlined, implying that it causes profound consequences for children’s mental health, housing pressures, homelessness, addiction, loneliness in old age and much more. As a result, it was claimed that the Government are justified in helping couples stay together and counteracting the high level of relationship breakdown, to promote stability.
In Finding Fault?, Trinder pinpointed the robust body of evidence in revealing the negative impact of parental conflict on children’s wellbeing. More importantly, Trinder underlined that the study exhibits evidence that the use of fault actually undermines any efforts minimises parental disputes post-separation, instead triggering parental conflict in some cases. Consequently, this suggests that while divorce can be perceived as harmful to society, such harm cannot be undone by making a divorce process difficult in order to keep families’ legal ties intact. Therefore, allowing parties to end a marriage by agreements in a manner away from State intervention will not work as a deterrent in upholding the institution of marriage, and parties should be able to do so in private and by agreement.
Those against the DDSA highlighted the impacts of perceived ‘easier’ and unilateral divorces on women and children; for example, Conservative MP Fiona Bruce stated, “there is no one to answer the young woman with a baby in her arms and a toddler at her foot, who has just received a notice in the post”. Nonetheless, it is questionable whether the previous law worked to strengthen the position of marriages in society, or if it simply just made it harder for those who were already in a broken relationship to cut legal ties – namely ‘empty shell’ marriages.
Before No-Fault: The Old Law
Although the Family Law Act of 1996 failed to deliver substantive reform, it steered important developments that came together in focusing political and public attention to the problems with the MCA. Under the MCA, although there was only one ground for divorce in theory – the irretrievable breakdown of marriage – the divorce could not be granted without at least one of the following supporting facts: adultery, behaviour, desertion (of minimum two years), separation of two years if the respondent consented to the divorce or a five year separation if consent was refused. Whilst the State (through the court) played a role in deciding whether or not there was sufficient evidence that the marriage had been irretrievably broken down, the MCA posed issues in its divorce process that neither respected the parties’ individual decisions to get a divorce, nor allowed a divorce to happen privately and amicably.
The Law Commission criticised the MCA, emphasising the considerable gap between theory and practice, whereby the law ‘tells couples that the only ground for divorce is irretrievable breakdown’ but instead invokes a fault-finding process that requires proof. More importantly, in emphasising that the process of divorce was of no help in supporting the marriages that stood a chance of survival, the report suggested that the law cannot prevent people from separating or forming new relationships, although it can work to make it harder to get a divorce.
Another issue with the MCA includes the lack of honesty in its use. The lawyer’s organisation – Resolution – has long campaigned on the basis of fault facts making things worse between the parties. Their 2015 Manifesto for Family Law reveals that making allegations for fault often creates conflicts and makes reaching a mutually acceptable agreement become more difficult, fuelling hostility and causing significant harm to children. More significantly, the manifesto included an example of a father who made an agreement with his wife that he would admit to a fabricated affair to dissolve the marriage faster, which backfired in leading to a damaged relationship with his child.
Baroness Deech implied that the finding of fault could work to send a message that behaviour in marriage is a serious issue. She also emphasised that the successive attempts to bring the statute law into line with ‘reality’ have resulted in an increased divorce rate, as well as the use of divorce as a solution to marital problems and more willingness to use it. Nonetheless, the State’s interest to support marriage is a result of the the costs it produces – both financially and emotionally. Therefore, whether or not couples are legally married, divorced or simply cohabiting is of lessened significance; these factors alone are not the cause of problems within society. There is little value in forcing couples to stay married. What is important is the existence of healthy relationships and healthier breakups. Conflict is bound to occur on separation whether the divorce law includes fault or not; however, the element of fault introduced an entirely unnecessary additional source of conflict.
The Divorce, Dissolution and Separation Act 2020: No-Fault, a Step in the Right Direction
There is no doubt that no-fault divorce is an important and necessary step forward. Divorce under the DDSA boasts substantial procedural differences for those wishing to make an application for divorce. Previously, applications would need to state precise facts being relied upon (with details) for the breakdown of marriage. However, applications are now made online via the HMCTS portal, where the portal simply asks: ‘Has the applicant’s marriage broken down irretrievably?’ The applicant must select ‘yes’ or ‘no’ and simply continue, with no burden of proof or details.
While irretrievable breakdown remains the single ground for divorce, the reform has shifted the law in a way to no longer require evidence for this. The statement itself will be conclusive evidence of the irretrievable breakdown of the marriage and will remove the possibility of contesting the application. However, does the simple tick box question on an online portal detract from the life-changing nature of getting married and considering all the rights and responsibilities that flow from that? The answer can be found in mandatory wait period.
The DDSA has established a 20-week mandatory wait from the issue of the divorce application to apply for the conditional order. Put together with the mandatory six week wait between the conditional and final order, the process is made to take at least 26 weeks from start to finish. To contrast with the old law, once a respondent’s acknowledgement of service had been received, the petitioner could apply for a degree nisi without any time constraints. The rationale for this is to afford parties to reflect upon their decision and discuss matters.
Some commentators have maintained that this goes against the ethos of the new law in adults being able to make consensual decisions about their relationship, whereby once the difficult decision to get a divorce has been made, a minimum of 26 weeks is a significant amount of time.24 Whilst this study has detailed the ways in which the privatisation of divorce is a step in the right direction, it is important to highlight that overall, divorce should not be the first call in family problems and this feature can be seen to encourage reconciliation in a private manner. As a result, while the feature of mandatory wait may slightly retract from the liberal movement of divorce, the State playing a role in attempting to give parties time to conceal – independently – is a fantastic feature, appropriate to society’s way of thinking about divorce today.
Other important views in favour of the reform rightly emphasise that the role of the State in deciding whether people should be married is absent, and therefore divorce should be decided on private terms and the state should not consider it is its business to consider whether they are right. According to the research done by Exeter University and the Nuffield Foundation, people have said that it is time that the state respected and did not second-guess the decisions of parties to a failed marriage. After all, in the majority of cases of divorcing spouses, the petition does not come at the beginning of something going wrong; it comes at the end, when efforts have been made on both sides to have reconcile. Therefore, it is a very serious step that is not taken lightly, and the State should respect parties to divorces.
Closing Remarks
To close, the State’s interest in upholding the institution of marriage in aims to limit financial and emotional harm are paramount to a stable and functioning society. Nonetheless, divorce is a private matter, and the law should allow parties to end their marriage by agreement when desired. The Law Commission considered in their report – The Field of Choice – that a good divorce law should not undermine the stability of marriage, but more importantly should enable the empty legal a shell to be destroyed with maximum fairness and minimum bitterness when a marriage as been irretrievably broken down. The reform to the law of divorce implemented by the DDSA can be seen to do just this, celebrating privacy instead of instructive inquiry, and closure rather than stirring up the past, better reflecting changes in attitudes towards divorce in post-industrial society.
The way forward? The focus of divorce legislation should be on practical matters, such as child custody arrangements, financial remedies, and other issues that inevitably arise from divorce when parties are unable to come to an agreement rather than on the breakup of the marriage per se. For those who are in favour of supporting the institution of marriage, the effects of family break up could be improved through other means, by – for example – providing more affordable day care for children or looking at preparing men for parenthood.
Bibliography
Books:
Parkinson P, Family Law and the Indissolubility of Parenthood (CUP, 2011)
Cases:
Owens v Owens [2017] EWCA Civ 182, [2017] 4 WLR 74
Hansard:
HC Deb, 25 June 2019, vol 662, col 588
HL Deb, 17 March 2020, vol 802, col 1396
HC Deb, 8 June 2020, vol 677, col 113-117
HC Deb, 17 June 2020, vol 677, col 875
Journal Articles:
Deech R, ‘Divorce – A Disaster?’ [2009] FL 1048
Draghici C, ‘From Indissolubility of Marriage to Unilateral Divorce on Demand: A Tardy Revolution in English Family Law’ (2023) 35(4) CFLQ 413
Elliott K and Dallyn P, ‘Family Law: Ten Predictions for the Next 10 Years’ [2021] FL 1245
Fleet J, ‘The First Year of ‘No-Fault’ Divorce – What is the Practical Impact of the New Law? [2023] FL 183
Kingston S and others, ‘No-Fault Divorce – New to England and Wales but What About Other Jurisdictions?’ [2022] FL 984
Legislation:
Divorce, Dissolution and Separation Act 2020
Family Law Act 1996
Matrimonial Causes Act 1973
Reports:
Law Commission, Reform of the Grounds for Divorce: The Field of Choice (Law Com No 6, 1996)
Law Commission, The Ground for Divorce (Law Com No 192, 1990)
Resolution, ‘Manifesto for Family Law’ (Resolution, 2015)
Trinder L and others, ‘Finding Fault? Divorce law and Practice in England and Wales’ (Nuffield Foundation, 2017)
