On any view, our present divorce laws are a shambles.

Way back in 1973, the Matrimonial Causes Act came into force in part to remove conduct during the marriage as a factor to be taken into account between divorcing parties when dividing the matrimonial pot.  Within reason, this was seen as a positive move after the salacious revelations of the likes of the Duke and Duchess of Argyll, each blaming the other for an extraordinary relationship.  On any view, it was a marriage in name only.

But what the Act failed to address was the vexed problem now preoccupying many in the profession and the courts, namely ‘fault’ as the reason why the marriage had broken down irretrievably.  The legislation still requires one of the parties to blame the other for the breakdown of the marriage, and he or she, usually she, has several options to choose from: the front runner is almost always unreasonable behaviour, closely followed by adultery, and desertion in its different forms bringing up the rear.

Needless to say, the unreasonable behaviour should not be such as to tick the ‘conduct’ box, where other considerations apply.  Are you with me so far?  No, I didn’t think so.

Those in the profession arguing for ‘no fault’ divorce have highlighted the recent case of The Owens, where the wife petitioned for divorce after 40 years of marriage, stating as her ground her husband’s unreasonable behaviour.  Unusually, he contested this as groundless, the judge agreed, and refused her petition.

Family lawyers have taken up this case as yet another example of the absurdity of the present divorce laws, and argue, quite rightly in my opinion, for ‘no fault’ divorces.  Having to find a reason to divorce by blaming one party or the other is wholly artificial, and it can cause irreparable damage to the family unit where children are involved. By all means require the warring parties to attend mediation, just in case there is some hope of reconciliation, but once they are determined to end the relationship, let them do so with dignity.

I wonder if Liz Truss has an opinion to offer, but don’t hold your breath.

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David is an English barrister, writer, public performer and keynote speaker. His full profile can be found on his website.

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