Vardags Family Law Essay competition 2023/24 | Sarah Makinson

Sarah Makinson - Edge Hill University

No-Fault Divorce: A Socio-Legal Analysis on the Impact of Increased Accessibility to Divorce

Introduction

The Divorce, Dissolution and Separation Act (DDSA) 2020 signified a notable transformation of divorce law in England and Wales. A multitude of slow-changing legislation throughout history impelled married couples to specify which party was at fault for the marital breakdown; a factor that exacerbated the emotive nature of divorce proceedings. The DSSA ensured this was no longer a necessity by pioneering no-fault divorces, allowing couples to apply on the sole basis of an irretrievably broken down marriage. Upon the legislation’s implementation in 2022, divorce rates increased by 22% in comparison to the previous year. This essay postulates that by voiding the appointment of blame that deterred couples from petitioning, the state increased the accessibility of divorce. This landmark act connotes an attempt by the state to modernise outdated legislations to parallel sociological developments, inevitably causing significant reverberations throughout society. Beginning with an analysis of the chronology of divorce legislation, this essay will utilise socio-legal methodology to sequentially analyse the predominant legal and sociological implications of increasing the accessibility of divorce on a macro scale.

The Historical Development of Divorce

Credited as the ‘father of divorce’, King Henry VIII innovated marriage termination in 1533 by divorcing Catherine of Aragon without papal dispensation. Subsequently, marriage terminations became exclusively available to the wealthy in the form of a Private Act of Parliament – a convoluted process excluding the courts and rendering divorce a matter for the legislative. The primitive framework of modern divorce originated through the Matrimonial Causes Act (MCA) 1857, bestowing discretion upon the courts to terminate marriage based upon adultery, cruelty, or a three year separation. Sections of this act were deemed discriminatory against women, and were later amended in 1923. This legislation evolved into the Divorce Reform Act (later amalgamated into the MCA 1973), which attempted to simplify the threshold for divorce by introducing a sole ground; the marriage had irretrievably broken down. This umbrella term, however, encapsulated five facts that the grounds must be established upon – three of which continued to require parties to assign blame.

Divorce’s journey from exclusivity to royalty, the wealthy and now the general public connotes an augmentation in the accessibility of divorce – manifesting a ripple effect felt throughout the dimensions of modern society.

The Introduction of No-Fault Divorces

Under the recently reformed MCA 1973, divorce candidates had to prove that the marriage had irretrievably broken down due to one of five facts: firstly, adultery. This had a significant development from the MCA 1857 to the MCA 1923, as the amendment permitted both sexes to divorce their spouses on the grounds of adultery. The second fact was intolerable behaviour; a multifaceted umbrella term, with examples including domestic violence as stated in Bergin v Bergin. Dunn J formulated a test of reasonableness to establish a threshold for this fact in Livingstone-Stallard v Livingstone-Stallard: would the reasonable person conclude that the petitioner cannot be expected to live with the respondent due to their behaviour? Unreasonable behaviour accounted for almost half of the divorces in the UK in 2023. The third fact – spousal desertion – has been categorised by academics as a mechanism of ‘self-divorce’ that can be traced back to medieval times when divorce was entirely prohibited. In modern times, the remaining spouse can utilise desertion catalyst for divorce if the following criteria are met: the couple have not lived together for over two years; there are no reasonable grounds for desertion; the respondent intended to desert; the petitioner did not intend to separate. The fourth and fifth justifications can be amalgamated; a two-year separation if both parties consent to the divorce, or a five-year separation if one party does not consent. These were the only facts that could be relied upon without appointing blame. The courts retained the right to deny the divorce if one party would suffer ‘grave financial or other hardships’ or would be ‘wrong in all circumstances’.

The landmark case of Owens v Owens signified a need for reformation after Mrs. Owens was unable to divorce her husband on the grounds of unreasonable behaviour as his actions, although hostile, did not meet the threshold established in Livingstone-Stallard v Livingstone-Stallard – a rare occurrence in unreasonable behaviour cases. Following this, a 2018 Consultation Paper was released that aimed to ameliorate conflict within legal proceedings. The paper criticised the requirement to appoint blame as it manifested hostility and bitterness within legal proceedings, unnecessary complexifying the process. Moreover, the paper questioned the appropriateness of the court’s ability to assign such blame. It alternatively proposed the abolition of the five facts, retaining the single umbrella term that the marriage had irretrievably broken down. The Government’s response paper disputed that it was not the court’s position to assign blame, but to ensure that the legal threshold required to grant a divorce was met. Nevertheless, the Consultation Paper’s influence was undeniable after the DDSA’s introduction, as the no-fault divorce realigned the courts with their more archetypal stoic approach to law. Nullifying the requirement to appoint blame, this act minimised the risk of parties falsely petitioning themselves as the cause of the breakdown to obtain a faster divorce, undermining a foundational pillar of the legal system: honesty.

The Influence of the State

The slow progression of divorce legislation implies the state’s reluctancy to make divorce accessible. In 1978, an article by Weitzman explored the increased usage of “egalitarian” intimate legal contracts by parties to govern relationships – such as cohabitation agreements – rather than traditional marriage. Whilst Weitzman distinguishes the two, marriage is also, by nature, a legal contract. The assumption arises that marriage should be governed by contract law etiquette, and the state’s involvement should remain as it does in any private contract: neutral, and only involved at the request of the parties. Wilkinson’s article suggests the contrary; the state heavily supports marriage as it proves a ‘benefit of individuals and their children’, subsequently benefitting wider society. An article by Hill proposes that the state’s interest in marriage purposefully complicates the nature of divorce proceedings to make marriage terminations less accessible.  Hill does not argue that marriage should simply be treated as any private contract, but that marriage should not be a legal matter in any form as this acts as a mechanism of deterrence and only furthers state involvement. Although it appears prima facie that the state is becoming increasingly accepting of divorce through the introduction of no-fault legislation, the realistic accessibility of divorce can be questioned. Throughout this essay, reference will be made to the state’s influence on implications of no-fault divorces.

Children of Divorce

Perhaps the most significant ramification of increased accessibility of divorce is the effects on future generations. The Government estimated that in 2022 approximately 4 million children had a separated family unit. One academic psychology journal reveals the realistic impacts of divorce on children, including poorer performance in academia, poverty, lower-paying jobs and irresponsible sexual behaviour.

Interestingly, the article further proposes that these children exhibit no evident psychological issues; these negative impacts appear to arise from the family environment, rather than the psychological effects of the divorce itself – suggesting that a stable separated family unit could negate these issues. A second article theorises that children with divorced parents are more likely to be divorced in the future than those with a stable family unit, although the author acknowledges that ‘inter-generational transmission of marriage instability’ is a concept that is widely debated in academia. These statistics may be interpreted as a support of the state’s promotion of marriage to protect future generations.

The alternative to divorce would evidently be to remain married, although this may result in ‘emotional divorce’. Defined as couples essentially removing all emotional connections to their partner but remaining legally married, academics theorise that unhappy home lives could prove more detrimental than having divorced parents, although it is important to note that the two are not always mutually exclusive. A recent study substantiated this claim by assessing both children of legal divorce and of emotional divorce, concluding that children whose parents remain in an unstable marriage were more likely to develop emotional and behavioural issues that children of divorced parents with stable home lives. Marital breakdown is perhaps inevitably detrimental to a certain degree to children involved, but it can be speculated that a legal divorce and the opportunity to readjust to separated parents may prove more beneficial that remaining in a turbulent marriage. However, it is near impossible to accurately produce a comprehensive list of the psychological effects of divorce on children due to the unattainably large sample this would require, and a plethora of potential external factors to be considered.

Victims of Domestic Violence

Those suffering from domestic abuse appear to benefit significantly from the introduction of no-fault divorces. The Family Law Group state that there has been a 30% decrease in domestic violence since the implementation of the DDSA, combined with an 8% decrease in suicide rates – although the source fails to specify if the latter is specific to suicide of domestic violence victims. One family law solicitor postulates that the statement required prior to the DDSA detailing a spouse’s unreasonable behaviour dissuaded victims of domestic violence from petitioning to divorce, fearing their abusers reaction or the prospect of regurgitating past traumas. Although no-fault divorces appear to negate this issue, domestic violence victims must navigate a convoluted legal process with their abusers; divorce proceedings have been referred to in academia as an extension of domestic abuse, as the abuser may purposefully prolong and complicate proceedings to exacerbate their spouse’s suffering and retain a mechanism of control. This is, in part, remedied by the removal (aside from in exceptional circumstances) of the ability for a party to contest aspects of the divorce. One journal article criticises the efficaciousness of mediation in such proceedings, as an evident imbalance of power between the victim and abuser would render the process unjust. This connotes that, although no-fault divorces statistically appear to be a welcome support to victims of domestic violence, the intricate processes of the legal system remains intimating. The state appears to have made welcome improvements in supporting victims, but further reform – perhaps by way of increased protection during proceedings – is required.

Psychological Implications

The process of no-fault divorces appears prima facie to reduce emotional volatility between parties by nullifying the assigning of blame, particularly within the aforementioned abusive marriages. Whilst it has been established that the appointment of blame raises emotions during proceedings, the psychological effects on the spouses of remaining in unhappy marriages and post-divorce emotions must be analysed to establish if there is benefit in increasing divorce accessibility. A longitudinal study by Hawkins and Booth evaluated the effects of long-term, low- quality marriages, concluding that the partnership reduces self-esteem, quality of life and overall health – another tip of the scales towards the need for accessible divorce. There are few studies surrounding the psychological effects of divorce on the parties; one 1991 study attempted the feat, but defeatedly concluded that there were too many external factors to accurately conclude whether elevated stress levels during marriage and legal proceedings were diminished after the divorce. As an important external factor noted was the volatility of the divorce proceedings, it could be theorised that removing the need to appoint blame promotes decreased stress levels, seemingly affirming that no-fault divorces are indeed psychologically beneficial. The reduction in suicide rates of domestic abuse victims further this notion.

The Legal System

The increased accessibility of divorce has had unsurprising ramifications on England and Wales’ legal system. Garrett Hardin’s economic principle ‘The Tragedy of the Commons’ provides a sufficient analogy, referring to a period in time in which common land was free for any man to graze cattle upon and, due to its accessibility, the land would always become overrun and inaccessible – the tragedy is the inevitability of this process. In this instance, the increased accessibility of divorces has resulted in the courts becoming inundated, slowing down proceedings and reducing the accessibility of the legal system. Although there are conflicting statistics on the specific increase of wait times for divorces, all appear to concur that the new divorce laws have substantially increased the average time for divorce proceedings. One source cited that the average divorce proceeding in 2023 was 67 weeks – a 14- week increase since the introduction of no-fault divorces. The question arises as to whether no-fault divorces are truly more accessible; long wait times may deter parties from applying, perhaps opting to stay in a low-quality marriage that can, as Hawkins and Booth’s suggest, negatively affect the quality of life. This may affect victims of domestic abuse particularly, as they face a long and arduous path to be contractually freed from their abuser – a significant factor when considering that time is of the essence in escaping domestic abuse relationships. Long wait times are commonplace in the legal system, and appear to support Hill’s argument that the state’s decision to categorise divorce as a legal matter negatively impacts candidates seeking to terminate a marriage. In contrast, the average cost of divorce proceedings has reduced – a noteworthy factor within a society that is currently enduring a cost of living crisis. The simplification of proceedings and removal of the ability to contest minimises solicitor correspondence; one of the costliest aspects of divorce. It is unknown whether the financial benefits will appeal to prospective parties greater than the dissuasion of exorbitant wait times.

The Church and the Law

Matthew 19:9 states that “whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery”, interpreted in Christianity as an absolute prohibition of divorce. Marriage was historically a matter dealt with solely by the church, and yet its waning influence over the law in England and Wales is undeniable – King Henry VIII ensured that the concept of divorce is rooted in a rebellion against Catholicism. The decline of the church’s influence is epitomised within Judge Laws’ commentary during the case of McFarlane v Relate Avon, in which he states that no single religion should have greater influence over the law than another. This accuracy of this statement is evident in the implementation of the DDSA; perhaps by increasing accessibility through the introduction of no-fault divorce, the judiciary has unintentionally mirrored King Henry VIII’s rebellion of the church and its archaic conventions. Hill’s article suggests that the state’s promotion of marriage is rooted in Christian beliefs, yet the legislation of the DDSA appears, by nature, contradictory. Academic opinion aside, increasing the accessibility of divorce is a modern exemplification of the church’s declining influence over the law.

Feminism

The concept of feminism arises frequently within divorce-related academic commentary. The sociological ideology of feminism is defined as an advocacy for women’s rights, with an article by Thompson postulating that feminists espouse divorce as a mechanism to shun patriarchal society. Historically, under the MCA 1857, men were able to simply cite their wife’s adultery as the grounds for their divorce. An epitome of the times, women were not afforded the “luxury” of citing their husband’s adultery as sole grounds, but were required to couple it with his incest, rape (of a third party), sodomy or bestiality. The snowballing of the feminist movement is theorised to have spurred the abolition of this blatant inequality in the MCA of 1923. This was regarded as landmark legislation for the equalisation of divorce rights, as it removed the requirement of women to provide these aggravating factors. This achievement was not celebrated unanimously, as some feminists contested that the advocacy for equality within divorce law detracted from increasingly pressing matters of inequality, such as birth control and social welfare. This view, alongside much of modern academic literature focusing primarily on the interrelation of archaic divorce legislation and feminist theory, renders the effects of no-fault divorce on feminism ambiguous. This remains a crucial sociological aspect to analyse nonetheless, as feminism influenced the amendment of past discriminatory divorce legislation. If applying Thompson’s theory that divorce is a patriarchal rebellion, it can be presumed that the introduction of no-fault divorces has been significantly advantageous to feminism as women have greater access to marriage termination. Perhaps it can be further presumed that the greater accessibility of divorce has allowed feminists to focus on alternative current issues, such as the gender pay gap.

Conclusion

It may have taken almost five-hundred years to create a divorce process that is equal and accessible, but the ripple effects of legislation that negates the necessity to appoint blame have been sociologically monumental. The DDSA utilised the legal system to support victims of domestic abuse by simplifying the process of terminating a contract that legally bound them to their abusers. From the perspective of Hawkins and Booth’s longitudinal study, the legislation has granted people a higher quality of life by increasing the ability to terminate low-quality marriages.64 The DDSA signified both a shift away from the archaic influence of the church on the law and a solidarity with the unstoppable feminist movement. Whilst children will inevitably suffer from the separation of a family unit, academics contend that remaining a child of a low-quality marriage can be equally detrimental, implying a stable separation as the solution. The courts may be inundated with divorce proceedings, and the wait times may be exorbitant, but it cannot be denied that the legal and sociological benefits of increasing accessibility through no-fault divorces have been far-reaching and monumental. Perhaps the state does favour marriage as the foundation of society, but the nature of its legislative evolution signifies, at the very least, an increased acceptance of divorce.

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Bibliography

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George, R., Thompson, S., & Miles, J., Family Law: Texts, Cases and Materials (4th edition, Oxford Press 2023)

Gilmore, S., & Glennon, L., Hayes & William’s Family Law (7th edition, Oxford University Press 2020)

King James Bible (Cambridge University Press, 1769)

Cases

Bergin v Bergin [1983] 1 All ER 905

Livingstone-Stallard v Livingstone-Stallard [1974] 2 ALL ER 766

McFarlane v Relate Avon Ltd [2010] EWCA Civ 880

Owens v Owens [2018] UKSC 41

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Ministry of Justice, Reducing Family Conflict: Government Response to the Consultation on Reform of the Legal Requirements for Divorce (CP58, 2019)

Ministry of Justice, Reducing Family Conflict: Reform of the Legal Requirements for Divorce (CP58, 2018)

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Adelman, M. ‘No-Way Out: Divorce-Related Domestic Violence in Israel’ [2000] 6 Violence Against Women 11

Al-Shahrani, H. F., & Hammad, M. A. ‘Relationship Between Emotional Divorce and Alexithymia Among Married Women in Saudia Arabia’ [2023] 11 BMC Psychology 217

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Glenn, N. D., & Kramer, K. B. ‘The Marriages and Divorces of the Children of Divorce’ [1987] 49 Journal of Marriage and Family 4

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Divorce Reform Act 1969

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Bradforrd, E., & Purt, G. ‘Why Have Divorce Rates Increased Since the No-Fault Divorce Law was Introduced?’ (Girlings Solicitors, 2022) Crisp & Co. ‘No Fault Divorce’ (Crisp & Co., undated)

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McTaggart, K. ‘Divorce in History – How Much has it Changed?’ (Woolley & Co. Solicitors, 5 January 2015) 

Orsi-Barzanti, L. ‘The Pros and Cons of No-Fault Divorces’ (GNLaw, 22 December 2022) 

Rai, J. ‘How the Introduction of No-Fault Divorce May Assist Victims of Domestic Abuse’ (Duncan Lewis Solicitors, 4 January 2022)

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The Family Law Group, ‘How Will the New Divorce Act Impact on Victims of Domestic Abuse’ (The Family Law Group, 1 November 2022)