1. Embracing Autonomy
The current divorce process prevents people from making mature decisions about their own relationships. People are forced to justify to the court why their marriage should be ended, rather than deciding that for themselves.
This is wholly incompatible with our modern view of marriage. It is over a century since marriage law was wrested from the ecclesiastical courts and marriage is now seen as a personal choice, rather than a religious obligation or a matter of property rights. It is absurd that divorce is not seen in the same way.
People do not divorce frivolously. It is a difficult decision with huge emotional and financial significance. People should be trusted to make that decision without the unnecessary interference of the state requiring them to prove why they want it.
2. Avoiding Acrimony
The present system forces couples to start their divorce in an acrimonious manner. One party must not only be blamed for the divorce, but must have their faults set out in a formal court document.
This creates hostility from the outset, casting divorce as a combative process rather than one of working together towards independence. It provokes acrimony which can sour the conduct of the case and the future relationship of the parties.
3. Tackling Abuse
Fault-based divorce can exacerbate domestic abuse and see the court cast as the facilitator of misconduct.
Parties can refuse to a divorce as a way of exerting control over the one who wants to leave, forcing them to endure extra court dates and extra expense in ending their marriage. It also forces victims to confront their abusers by setting out the reasons they want out.
It is commonly noted that the most dangerous time for an abuse victim is when they attempt to leave a relationship. Forcing them to start divorce proceedings by making accusations of misconduct against their partner can only heighten this risk.
4. Promoting Child Welfare
Parents have a life-long connection to each other, regardless of their marital status. The acrimony of fault-based divorce can easily damage that relationship. By encouraging couples to start their divorce with accusations of misconduct, the current process pushes them towards a falling out that can overshadow their children’s future.
No fault divorce would help to defuse these tensions. It would encourage a co-operative and rational approach to separation, which sets sound foundations for co-parenting. This will mean more children of separated families grow up with both parents playing a full and active role in their lives. It will help them avoid parental alienation and give those children a supportive and understanding environment in which to grow up.
5. Cost and Convenience for Individuals and the State
Fault based divorce is cumbersome and costly for both the state and litigants. The need for judicial scrutiny of 120,000 sets of petitions and answers places a significant burden on the court system, occupying time which could be spent on more substantive matters. It also requires a large back-office operation which could be streamlined presenting further savings for HMCTs.
The drafting and answering of petitions also creates costs and stresses for litigants. Where a petition is challenged, such costs can easily mount as one party is forced to demonstrate that their marriage has irretrievably broken down. A move to no fault divorce would make this process easier and less costly for those involved.