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Breaking up should not be easy to do

Breaking up should not be easy to do

by Belinda Brown | May 02, 2019

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Almost 20 years ago Lord Irvine ditched the Conservative Party’s proposals for no fault divorce law as they had proved "unworkable" and likely to lead to an increase in divorces. Now we are told no fault divorce law will definitely be introduced. What has changed?

Probably the most significant factor is Sir James Munby’s drive to introduce digitisation of the divorce process. Sir James, President of the Family Division of The High Court and Head of Family Justice for England and Wales,  hails this as a “Visionary programme of ambition unprecedented anywhere in the world.” Its aim is to create a one stop online divorce shop which, it is hoped, will save the courts and the tribunal system £250 million through a reduction in paperwork and processing time.

Digitising the divorce process requires reforming the law, as Liz Trinder of the liberal Nuffield Foundation explains: “This is a timely opportunity for law reform given the work that is being undertaken to digitise the divorce process. The benefits of that project for the parties and for [the justice and courts system] will not be realised without substantive law reform.” 

The result will be that divorce will become even more accessible, quicker and inevitably cheaper. With absolutely no social institutions to uphold marriage vows, the sanctity of marriage will plummet even further.

This process has been documented in the United States. As divorce becomes easier, married couples feel more anxious about dependency in marriage and less inclined to invest in their marriages. For example, women may feel anxious about supporting their husband’s career at the expense of their own; men might be hesitant about having another child or paying for their wife to take a degree. A lack of investment increases the probability of divorce.

The result is an increase in divorce rates from which the institution of marriage does not recover. The pattern seems to be that as divorce becomes easier, this leads to an increase in the rate of divorce, which in turn leads to a reduction in the number of marriages. As marriage rates reduce, so eventually does the rate of divorce, but only because those who get married tend to be much better off, older and less likely to have young children – factors which will reduce the propensity to divorce. Those who are most likely to benefit from marriage – those with young children, or the least well off are no longer getting married.

However, the Nuffield report, which is intended to inform the debate, tells us that “there is very little if any evidence of a relationship between divorce law, fault and divorce rates internationally.”

This is untrue. There is a great deal of evidence of a strong relationship between the changes in the divorce law and increases in the rates of divorce. There is also a great deal of debate about this evidence. An honest assessment would conclude that when it comes to the relationship between divorce law and its impact on rates of divorce and marriage, the jury is still very much out (see for example herehereherehere, and here).

Nevertheless, their misrepresentation of the evidence on divorce law and divorce rates is essential to the packaging of their proposals as protective of the family simply, which otherwise wouldn’t stand up. The narrative in all the media is that this law is about making things better for the couples involved and, most particularly, their children, by protecting them from the nastiness of divorce.

But it won’t. Under the new system, marriage will become the one contract you can sign up to, invest all your life and love in, and then see it unilaterally broken, without even any acknowledgement that harm and wrong have been done. The anger and resentment created by this cannot simply be magicked away.

Evidence suggests that the hostility and animosity from such a process is only temporarily brushed under the carpet. When no fault divorce was introduced in the US the process of divorce may have become easier but the processes of litigation – about custody of children or property – have actually increased after divorce.

When the divorce laws were relaxed in the UK after the Divorce Reform Act 1969, it was anticipated that they would have no effect on the rate of divorce. These laws would simply make things easier for those who were getting divorced anyway. 

We were wrong. Not only were we ignorant of the impact which the fallout from the changes in law would have on marriage, we had no understanding of the enormous costs which the breakdown of marriage would have for the family and for society.

Now we do know. Last year the damage caused by family breakdown was estimated to have cost the country £51 billion although I suspect the worst of the damage is something which you can’t count.

Justice Secretary David Gauke talks about making a system of divorce which is fit for the 21st century. However, when our judiciary envisage what is important for the 21st century, marriage doesn’t appear to have much of a role.

As long as 40 years ago, Baroness Hale, in her incarnation as Brenda Hoggett, suggested that marriage had already ceased to have any useful role:

“Family Law no longer makes any attempt to buttress the stability of marriage or any other union... Logically we have already reached a point at which, rather than discussing which remedies should be extended to the unmarried, we should now be considering whether the legal institution of marriage continues to serve any useful purpose (Eekalaar & Kats, 1980).” 

Sir James Munby achieved notoriety only last year for welcoming and applauding the end of the nuclear family. In fact, reading his rather prolix words, it sounds as if he was applauding the end of any sort of family.

This kind of thinking could explain the apparently lackadaisical approach which our judiciary have had towards divorce law. Trinder et al describe how there has been a gradual chipping away at the facts required to bring about divorce so that now the threshold is so low that the most minimal allegations will get through.

This has happened without public knowledge – but had we known, it seems unlikely we would have approved.

For when the judiciary did seek our views a full 80 percent of the nearly 3000 people asked were opposed to the notification process being proposed. Nuffield asked a similar number of respondents and found that 71 percent thought fault should remain part of the law. This is not far off the 1990 Law Commission Report level where fully 84 percent thought that divorce should continue to be part of the law.

Rather than making a divorce law fit for the 21st century we should create a divorce law which is fit for marriage; marriage as the institution which is the cornerstone of the family; marriage as the bedrock on which society is built.

But for the moment we won’t get much help from the judiciary and family justice system to do this. They have abandoned our concerns and interests for expediency, ideology and a money saving exercise. It is time we reined them in.

Belinda Brown is author of The Private Revolution: Women in the Polish Underground Movement and a number of well-cited academic papers. British, she also writes for The Daily Mail and The Conservative Woman. She has a particular interest in men’s issues and the damage caused by feminism.

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