The arguments that apply to the issue of ‘fault’ in divorce are of two kinds.
Broadly speaking the arguments for getting rid of the element of fault in divorce lie a little too easily on the surface; while those against are rather more profound, subtle and in my judgement, convincing.
If the view the relationship between marriage and the law is that the law should follow the lead of society in general, then it is clear that since people prefer to be able to simply walk away from a marriage they are finding difficult with the maximum possible ease, the law should allow them to. On that view, since people also dislike the prospect of being held to account for bad, abusive or immoral behaviour the law should not require them to.
So one of the first questions that needs to be asked is something of a jurisprudential issue. What is the relationship of law to the societal norms and preferences of the society it serves?
It isn’t difficult to look for examples of societal behaviour where the law adopts the role of working against social preferences. In the sphere of taxation if the law followed social preference by refusing to criminalise those who preferred not to pay their taxes, the government would soon be bankrupted.
So the argument that Family Law should be ‘realistic’ and follow societal preferences is not immediately convincing.
What reasons are there for keeping fault as a ground for divorce and what are the consequences that follow if we do?
Marriage has moved away from the heady mixture of mysticism and praxis that its Judaeo-Christian roots provided. It began with an emphasis on the ideals of indissolubility rooted in spirituality and metaphysics, and slipped into the easier convenience-contract mode.
But whether or not one believes that two people become indissolubly one flesh on marriage, once they have children this metaphysics behind this perception harden into biology.
The fact that at least in terms of the lives of their children, the couples’ romantic and sexual union becomes expressed materially in the personhood of the embodiment of their union, their child or children. You might be able to walk away from the contract, but you can’t walk away from the expression of the union in the permanent form of a child, made up as a union of the DNA of the couple.
Put metaphysics to one side for a moment, and just go with biology. The contract of union has expressed itself concretely in a human life that cannot be undone, or dissolved or dis-created. The law ought to pause, in recognition that the life of the children elevate the institution of marriage into something much more than the exercise of contractual relations that can be set aside as easily as they can be entered into.
This pause ought to have the effect of making divorce more rather than less difficult, in order to recognise the needs and the status of the children in a marriage.
Contract law and those who don’t consent.
It has been reasonably said that the contract of marriage is the only contract that is unenforceable under the law. Even stripped of all spirituality and metaphysics, you would have thought that if two people entered into a contract of such depth and significance, it ought at least to require the consent of both parties to dissolve it.
The evidence is that 80% of divorce petitions are brought by one party against the will of the other party. The convenient myth that the ‘no-fault’ lobby depend on, that both parties ought to be able to walk away from the arrangement if and when it suits them, founders on this uncomfortable fact. Most divorces then are anything but consensual. But the party who wants to remain married, who wants longer to wrestle with the difficulties, who hopes for more time to address the mending of marriage, are left in the lurch not only by the deserting spouse, but by the law, under a no-fault provision.
If there is no element of fault, there will no longer be any need to require the lengthier periods of time, as we do with 5 years now, to give the most space to reflection and re-examination? They will be effectively reduced to divorce on demand of one party only; and in a much shorter period of time.
Practice and prosperity
The more simple divorce is to effect, the more quickly available, the less problematic in terms of moral responsibility that extends beyond immediate self-interest and convenience, the more ‘popular’ and accessible divorce will become.
In much the same way, as when the rules that made abortion difficult were simplified to make it easier and more accessible, the numbers of abortions rocketed, the same process will and does already apply to divorce.
All the studies show that stable marriages are good for children, good for mental health, good for the economy, good for social stability, and provide incalculable benefits to society.
But the removal of the element of fault will increase the numbers of divorces and so have the effect of doing harm to the mental health of children, bringing more households into poverty, causing more social disruption and anti-social behaviour. And to what end? To allow those who want to dissolve a marriage at will to escape any burden of moral stigma of moral accountability for their choices which they impose on un-willing spouses.
Violation of the vulnerable
Pope Francis observed that “we now live in a culture of the temporary, in which more and more people are simply giving up on marriage as a public commitment. This revolution in manners and morals has often flown the flag of freedom, but in fact it has brought spiritual and material devastation to countless human beings, especially the poorest and most vulnerable.”
There are times when the exercise of freedom and the imposition of personal autonomy at the expense of another, cause not only a profound moral deficit, but unsurprisingly to those who think about ethics, bring practical, psychological and spiritual harm in their wake.
‘Yes’ it would be convenient to strip the breakdown of marriage of all moral responsibility. But it would not be reflecting the full spectrum of moral complexity of the breakdown in marriage.
The no-fault project fails at so many levels.
Not only does it fail the original vision of the Judaeo-Christian promise of a quality of commitment that outlasts all adversity, but it fails the children of the marriage by removing prospects of reconciliation in the speeding up of dissolution. It fails the 80% of unwilling spouses. It even fails the utilitarian Benthamite test of the greater happiness for the larger number. It produces less happiness in the form of greater social instability and more fractured families and communities.
The element of fault in the breakdown of marriage may constitute a moral irritation, but like the paying of taxes, it may properly put the interests of society before the convenience of the individual. It may be better for us all.
The Rt Rev’d Dr Gavin Ashenden.