Last month, the government launched a consultation paper about reforming the legal requirements for divorce.
The proposal to remove fault-based divorce meets with near universal approval from the legal profession, and also from us at Marriage Foundation who have been running a campaign with the Times newspaper for the past year or more.
However, some proponents of marriage still worry that the removal of 'fault' will make divorce easier and undermine marriage. See for example 'In defence of marriage' by Spectator columnist Rod Liddle.
Although I laud his and others' support for marriage, I see no reason why the proposals, if enacted, should be anything other than good news.
Proponents of marriage – including Marriage Foundation – have nothing to fear.
First of all, it's not clear to me why we should have fault-based divorce at all. All humans are fallible. Nobody is perfect. This does not in any way excuse bad behaviour. But it does mean that in a relationship involving two fallible people, nobody can be judged faultless if it goes wrong. In the most extreme case where one person has behaved outrageously badly and mistreated his or her spouse appallingly, I can buy 95/5 per cent responsibility. I just can't buy 100/0 per cent. Divorce is the failure of a relationship, not just one individual.
Second, nor is it remotely clear why the introduction of no-fault divorce in 1969 might have caused the rise in divorce in the 1970s and 1980s – as Rod Liddle automatically presumes. Any account of changes in divorce rates since the 1960s needs to explain why ALL of the rise and ALL of the subsequent fall has involved change in the number of divorces filed by wives during the first decade of married life. We think this very distinct gender effect is best explained by the way men commit. The rise of cohabitation in the 1970s and 1980s led to more men 'sliding' from cohabitation into marriage without making a clear commitment. Thereafter, reduced social pressure to marry in the 1990s and 2000s now means that those men who do marry are 'deciding' to do so, leading to the big increase in stability.
Third, hard data strongly suggests that reducing no-fault waiting time has no effect on divorce rates. In Scotland, the law changed in 2006 to lower the waiting time where both parties agree from two years to one year and where only one wants the divorce from five years to two years. After a temporary blip to clear the backlog of two year no-fault divorces, Scottish divorce rates have continued to trend downwards in exactly the same way as they have in England and Wales. Whereas before the change, 19 per cent of Scottish couples cited one of the three fault-based 'facts', now only six per cent do so. The conclusion is clear. Given the chance, most couples would rather wait one year and not have to cast blame. Reducing that time does not encourage more couples to divorce.
And fourth, it's breaking up that is hard to do, not the legal process. The hardest part of splitting up is the decision to unravel years of entangled family history and face the prospect of a very different future somewhere else. Having walked through the doors, the decision is made and that's it. Once started, it is exceptionally rare that a couple will reconcile. Professor Liz Trinder's excellent Nuffield report showed this more clearly than anywhere I've seen. Of her nationally representative sample of 300 couples filing for divorce, some 51 couples did not complete the process.
Some proponents of marriage, such as the Coalition for Marriage, correctly point out that this is a common pattern. In every year, according to Ministry of Justice figures, about 10 per cent of couples do not complete the divorce process. But it is wrong to conclude from this that all, or even most, of these couples have got their marriage back on track. Of the 51 non-completing couples in the Nuffield study, just one couple reconciled and a handful more had unclear outcomes. So that's plus/minus one per cent of all divorces. Making divorce a registration process is not going to save marriages.
Marriage Foundation is all about commitment and stability for couples and children. So we have thought about this issue a great deal.
Will the removal of no-fault make divorce too easy? No.
Will it undermine marriage? No.
Will it prevent saveable marriages from being saved? No.
I am certain that many or most marriages can avoid getting anywhere near divorce. If you haven't already read it, grab a copy of What Mums Want and Dads Need to Know and be encouraged by our own and others' back-from-the-brink stories.
However, once couples walk through that door, that's it.
Changing divorce to a notification process with a sensible cooling-off period will not make divorce easier, will not cause divorce to rise – other than in clearing the backlog – and will not undermine marriage. We've had no-fault divorce for 50 years. The long overdue plan to remove fault is that it will also remove unnecessary conflict and bitterness from the divorce process.
I hope this will allay fears. May your own marriage flourish!
Harry Benson is research director of the Marriage Foundation.
