Do we even need a ground for divorce?

As I’m sure anyone reading this blog is aware, last week the Government confirmed what we already knew, i.e. that it intends to introduce a system of no-fault divorce. The news (if it was actually news) that we are at last to get a no-fault divorce system (as long as nothing, in particular Brexit, gets in the way of the necessary legislation) is obviously most welcome, but has an opportunity to simplify and improve the divorce system even further been missed?

The Government’s proposal is, I would say, quite conservative (with a small ‘c’) when it comes to no-fault divorce systems, retaining a large part of our existing system. In particular, the Government intends to keep the present ground for divorce, i.e. that the marriage has irretrievably broken down. The rationale for this given by the Government in its consultation document was the rather negative: “The Government has seen no evidence that it would be effective to remove or replace the sole ground that the marriage has broken down irretrievably.” The Government also stated rather ‘lacklustrely’ that irretrievable breakdown had “proved effective in many other comparable jurisdictions”. Not a particularly ringing endorsement. Slightly more constructively the consultation response published last week informed us that irretrievable breakdown “was seen to provide a clear and logical threshold”. But just how logical is it, and do we need a ‘threshold’?

As I explained here recently, a ground for divorce is not actually required in some comparable jurisdictions. Spain, Sweden and Finland do not have a ground for divorce. If those countries can manage without it, why do we need it? Why not just have an application to dissolve the marriage? After all, if we will no longer need to prove that the marriage has irretrievably broken down, why do we even need to say it has broken down irretrievably? Why not just say “I want a divorce”? If the court cannot investigate and decide whether the marriage has, in its view, broken down irretrievably, relying solely upon the word of the petitioner, then irretrievable breakdown itself is pointless.

Logically, a ground is not required. It is an unnecessary extra step. If a party to a marriage says they want a divorce, then that, in reality, is the end of the matter. There is nothing that the law can do to change the fact. Yes, the law can, if it wishes, build in a delay to cover the (highly unlikely, from my quarter-century of experience as a family lawyer) possibility that the petitioner may change their mind. But if they don’t change their mind, then the irretrievable breakdown of the marriage is a fact. It goes without saying. A marriage to which one party no longer wishes to belong has irretrievably broken down. Requiring that party to say that “I want a divorce because my marriage has irretrievably broken down” is a superfluity. It is like saying “I need to eat because I am hungry”, or “I need to dry myself off because I am wet”. Yes, we know.

And if divorce is effectively going to be an administrative process anyway (and I am not against that), then putting in a legal ground of any sort is completely meaningless. The divorce is a purely tick-box exercise. Removing one of those boxes will make no difference at all.

So we have seen that the Government’s arguments in favour of retaining the irretrievable breakdown ground for divorce simply do not hold water. Other comparable jurisdictions seem to manage quite happily without it, and there is actually no logic in it. Nor is there any logic in suggesting that a ‘threshold’ is needed, when the system never tests to see whether that threshold has been met.

And then we need to look at things from the perspective of the respondent to the divorce. Under the new proposals, they will be told that their marriage has irretrievably broken down, but they will be given no opportunity to argue that assertion. They will not be given the right of anyone else against whom a court process has been initiated: to defend themselves. It will be a fait accompli. Not a very satisfactory situation, from a purely legal perspective. On the other hand, if they are simply faced with the fact that their spouse wants a divorce, then there is really nothing to defend – they can’t say “oh no you don’t!”

Doing away with fault in divorce is obviously a good thing for reducing unnecessary animosity and complexity, but it seems to me that retaining a ground for divorce keeps an unnecessary element of potential animosity and complexity within the system. A ground-less system of divorce would go the whole hog and make the divorce process as ‘neutral’, and therefore as ‘animosity-free’, as possible, as well as making it simpler.

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