Gauke moving with the times on divorce

divorce

Or: The Times successfully undermines marriage even more…

I shall take no credit for it, but it is nevertheless very pleasing to read that the new Lord Chancellor David Gauke is heeding my calls for no-fault divorce. OK, he’s not actually said that the Government will introduce no-fault divorce, just that he will “examine the case for reforming divorce laws that force couples into damaging and false allegations of blame.” Still, that is extremely encouraging, particularly when those of us who have been calling for no-fault divorce for so long have largely been met by complete indifference from successive governments.

The news was announced in an article in The Times, which has apparently been running a campaign for family law reform, including the introduction of no-fault divorce, from behind its paywall. The article says that Mr Gauke acknowledges the strength of feeling on the issue of no-fault divorce, and will study the evidence for change, although he cautioned that he would not “rush to a conclusion”.

As one might expect, the news was greeted with pretty much universal approval from family lawyers. On Twitter, Philip Marshall QC, who is representing Tini Owens on her appeal to the Supreme Court, simply responded with the hashtag: #hurrah, followed by two exclamation marks.

Quite. And Mr Gauke’s predecessor Lord Mackay of Clashfern, another campaigner for no-fault divorce, is quoted by The Times as saying:

“I am delighted that the new Lord Chancellor has indicated that he will look at the evidence for change. It is now over 20 years since parliament, by a large majority in the House of Commons, passed a bill removing the need for making allegations of fault in order to obtain a divorce reasonably quickly.”

He is referring, of course, to the ill-fated Family Law Act 1996, which included provisions for the introduction of no-fault divorce. Those provisions were never implemented, and that part of the Act was finally repealed by the Children and Families Act 2014. Sir Paul Coleridge, chairman of the Marriage Foundation, describes the Government’s failure to put in place an alternative to the 1996 Act 21 years on as “both pusillanimous and a total abrogation of duty.” For once, I find myself agreeing with him.

Of course, not everyone is happy with this news. The sub-heading to this post comes from a comment to the article in The Times, coincidentally written by someone who calls himself ‘John B’. The comment went on:

“…well done Times you must be really proud of yourselves for ending the anarchic concept of marriage where people commit to responsibility and raise a family in a stable environment.

Look at the utopia of mass divorce and fatherless children on the horizon.”

Wow. I’m not going to comment here on the merits of marriage and the effects of divorce on children (save to say that some children are, of course, far better off away from the possibly toxic environment of a broken marriage), but I really don’t see why the introduction of no-fault divorce should either spell the end of the institution of marriage, or (in the long run) lead to more divorces. All this is about is making it easier, quicker, and less acrimonious to bring an end to a marriage that has already broken down. OK, there may be more divorces initially if people like Tini Owens are not made to wait five years for their divorce, but that spike will soon even out.

Another commenter suggested that Mr Gauke does not have the best track record when it comes to reform. I don’t know about that, but clearly we must not get too carried away by this news. There is still a very long way to go before we actually get no-fault divorce: the Government may decide not to bother after all, and if it does decide to proceed there is then the question of precisely what form the new law will take – hopefully not like the Family Law Act 1996, as suggested by yet another commenter to The Times article: that was awful, and quite unworkable. I recall once attending a seminar on the Act during which the speaker, a well-respected family law expert, confessed that he did not understand how the provisions of the Act were intended to work.

Still, at least now there is hope.

Photo of David Gauke by Policy Exchange via Flickr under a Creative Commons licence 

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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1 comment

Spike Robinson - February 8, 2018 at 10:27pm

Hi John

The real, significant “no fault” divorce, that would actually have a huge impact on the lives of children, women and men going through divorce, rather than just a minor irritant, would be to end the many incentives for ex partners to make the most serious allegations against each other to obtain advantage in legal proceedings, obtain legal aid, obtain custody of children and deny the same to the partner, cutting children off from their basic need for contact with both parents. That would be the “no fault” divorce that would make a huge difference to everyone caught up in the UK’s brutal divorce laws and associated laws such as DV, non-mol, and harassment laws.

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