On Monday the House of Commons voted through the Second Reading of the Divorce, Dissolution and Separation Bill by a resounding 231 votes to 16, on the third attempt to get it through parliament after Prorogation and the General Election. Having survived through three different parliaments the Bill will almost certainly become law in the next few weeks.
Legislating to make divorce easier might seem an odd priority for a Conservative government staffed by the likes of Priti Patel and Jacob Rees-Mogg, especially since it reflects almost no public demand or enthusiasm at all. In fact, responses to the public consultation ran heavily against the proposed changes.
The media has majored on the message, encouraged by the Government, that the Bill will introduce “No Fault Divorce”, ending the “Blame Game” around divorce. Now I’d hate to say the government and media (led by the BBC) would lie to us, so in the best of parliamentary traditions let’s say they are engaging in terminological inexactitude, or if you prefer, misrepresenting the truth.
Why do I say that? Well first there’s the fact that No-Fault Divorce was already introduced in 1969. What this Bill does is not to give the option of No-Fault divorce, which already exists, rather it takes away the option of alleging fault at all, just like it takes away the option of contesting a divorce. Because there are few things more outrageous to the progressive professional class, who basically now run everything, than the idea that family breakdown might actually be someone’s fault and not just something that happens, like the weather.
Though of course these days, with global warming, we actually all now agree that in the long-term you can change the weather. But family breakdown, it seems, with all its awful consequences, is still apparently just one of those things.
Then there is the repeated idea that eliminating the option of stating fault, or of contesting a divorce, will eliminate “blame” from the process of divorce. These “create conflict”, in the common words of advocates of this Bill – many of them divorce lawyers themselves.
I almost don’t know what to say about the idea that it is the technicalities of the legal process that “creates conflict” in the collapse of a marriage. Not the collapse of the hopes and dreams of a lifetime, not the betrayal of adultery, not the slow bitter failure of a relationship, not all the troubles and irritations of trying to parent across two homes and families. I’d guess if you are a divorce lawyer, who is, by definition, concentrated on that technical, legal part of the process, that is what you think of.
But that narrow focus is precisely the point, or rather, why these reforms miss the point. You can see this by taking a step back and asking why the law around divorce was ever phrased in terms of requiring a reason or “fault” in the first place? It wasn’t just because nobody had thought of a better system. It was because your views on divorce reflect your views on the nature and importance of marriage.
If you think marriage should be permanent by default, because its explicit, public commitment is an important bedrock for families and society, with divorce a necessary escape-hatch for those in tragic, intolerable situations, then you presume divorce should happen only with a reason, by exception, even if in practice it is widely available.
Since 1969 this has been the difficult compromise the law has tried to make, including no-fault divorce on a slower basis. But now this Conservative government wants to sweep that away, in practice turning marriage into a sort of contract-at-will, which either party can leave at any time for any reason or none. Not much like “till death us do part”.
Of course, there is little point forcing people to remain in a marriage that has already failed, which is why the existing law already does not. But no woman or man is an island, we are all shaped by the expectations and assumptions of society in how we approach our own lives and relationships. Laws, policies and social conventions all send a message about the expected permanence (or not) of marriage and the importance (or not) of commitment to the family.
And this at a time when there is ever increasing scientific evidence that failed marriages and family breakdown are linked to whole list of negative effects on children and society. To give just a few examples: children with married parents suffer lower rates of mental illness than any other form of family; they are also less likely to suffer physical, mental or sexual abuse. Married families, with or without children, are less likely to be living in poverty, and married people are less likely to commit crime.
But despite this, while the government finds time in its busy schedule to make divorce simpler, it seems to have no policy whatsoever to try to reduce the failure of marriages, and the breakdown of families, and all the miserable consequences that follow from them. Frankly, the divorce rate should be considered something like the smoking rate or the teen pregnancy rate, a social evil to be reduced, not through banning it, but through policies that get at the causes. After years of talk of “Nudge Units” and “Behavioural Science” in policy circles, it should not be beyond the government to craft policies that through a mix of financial support, education and social support helped encourage family stability and commitment.
During this period of Covid-19 lockdown many more marriages have been placed under unprecedented pressure as families struggle with financial hardship and uncertainty, isolation from friends and support networks, anxiety about health and family, and the challenges of both home-schooling and working from home. All without the temporary escapes that would usually be available. So, what positive vision to support marriages and sustain families does this Conservative government have? And if they don’t have one, then what is a Conservative government for?
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