Supreme Court judge, Lord Wilson of Culworth has been in the news recently following his criticism of government ministers for failing to reform divorce law. Among other issues Wilson cited the refusal of successive governments to institute no fault divorce. This has been the subject of campaigning from judges and family lawyers for some time. There has been less popular interest in the issue of no fault divorce. Partly perhaps, because many people wrongly assume that we already have this option in law.
Divorced, beheaded, died, divorced, beheaded, survived
As everyone knows, divorce was invented in the 1500s by Strawberry blond Trump-a-like monarch, King Henry VIII. In actual fact divorce required an Act of Parliament and Henry’s marriages to Catherine of Aragon, Anne Boleyn and Anne of Cleves were all annulled. Henry also cut Boleyn’s head off because, as discussed in Professor Eric Ives’s ground-breaking masterpiece The Life and Death of Anne Boleyn (2005, Blackwell Publishing) he didn’t like her anymore.
A century later, the poet John Milton published a pamphlet campaigning for divorce. In it he likened the inability to end an unhappy marriage to:
“two carcasses chained unnaturally together ; or, as it may happen, a living soul bound to a dead corpse”
(John Milton 1644, On the Doctrine and Discipline of Divorce)
This tells us that:
- Divorce was still contrary to cannon law in the 17th century, and
- The Milton’s were having problems
While a form of divorce was made available in the 1690s, this was only open to men and the very wealthy. It has been argued that until the 19th century:
“Mortality rates were so high that…death often did the work then that divorce does now in cutting marriages short. Even those spouses who refrained from giving mortality a little push must sometimes have greeted the death of a spouse with, shall we say, mixed emotions”
(Frances E Dolan 2008, Marriage and Violence: The Early Modern Legacy, page 53)
The Matrimonial Causes Act 1857
“We are not here, Mr. Adam, to secure your happiness, but to preserve the institution of marriage and the purity of the home. And, therefore, one of you must commit adultery …”
(A.P. Herbert 1934, source: Parliament UK)
In the mid-1800s divorce finally became available to ordinary people and to both sexes. Awards did favour men and women were more restricted as to grounds for divorce. Until well into the 20th century it was often necessary for a woman petitioning for divorce to prove adultery. When the couple wished to part on mutual agreement it was not uncommon for the husband to do the decent thing: agree to be the ‘guilty party’ then hire a prostitute, a detective with a camera and a hotel room to be ‘caught’ in. Some detectives (and guest houses) specialised in this service.
The Divorce Reform Act 1969
The current law gives five grounds for divorce which can be found under the Government webpage ‘Get a Divorce’. (If the Government is reading this, ‘How to Get a Divorce’ might sound a little more like guidelines and a little less like a suggestion). These grounds are:
- Unreasonable behaviour
- You have lived apart for more than 2 years (if both partners agree) or
- You have lived apart for at least 5 years (if only one partner agrees)
There are many loopholes in this list. For one thing guidelines state that ‘The law recognises the act of adultery as sexual intercourse between a man and a woman’. This means that if you are in a gay marriage with a spouse who is unfaithful (or, for that matter, a man whose wife has slept with every woman she’s met since your honeymoon) then in law, this doesn’t count as adultery.
You’d imagine that most judges would see this as ‘unreasonable behaviour’. The problem is, it is up to the judge to make that call.
This issue was brought to the media’s attention recently in the case of Tini Owens. Ms Owens had petitioned for divorce on the grounds of unreasonable behaviour. She had had an affair and wished to end the marriage. But her husband (in a bout of passive aggression worthy of an Irish mother) would not agree to the divorce saying that he had forgiven her. Judge Robin Toulson, QC refused to grant the divorce and now Ms Owens is left with a five year stretch before she can start proceedings again to end her marriage.
Judge Toulson’s ruling was unusual but it highlights, firstly that getting out of an unhappy marriage isn’t always your choice; but also that often the default ground for divorce is unreasonable behaviour. Many people go with this option when they feel the marriage is over. But there is nothing as dramatic or concrete to point to as adultery or desertion.
This means that even when a couple wish to part amicably and by mutual consent, the most straightforward and least acrimonious route for divorce is that one partner must be cited as being to blame for the breakdown of the marriage.
Moving on positively
Once a couple has decided on divorce counselling is often considered a lost cause. In reality breaking up and moving on is as much part of relationships as dating, starting a family or any other transition and perhaps requires even more support.
Relationship counselling can create a safe, confidential and non-judgemental space where you can both look deeper at what might have been at the root of your marriage problems. Crucially it offers a chance to recognise your own part in why the relationship did not work. This can make a huge difference. Not only facilitating your communication through the divorce process itself. But helping everyone involved to move forward to amicable shared parenting and more positive relationships in the future.
Dear husband/wife, you are charged with the following…
Even with the support of a counsellor, this kind of honesty takes courage and hard work. What cannot help this process is having the legal requirement to select an ‘innocent’ and ‘guilty’ party. Plus a formal list of faults that the ‘guilty’ person is formally charged with.
Jo Edwards, Chair of Resolution writes:
“Removing the need to allege fault on the part of one party would encourage parties to look forward rather than at what has happened in the past and would facilitate a constructive focus on future arrangements and responsibilities in the best interests of the children”. (Family Law April 2015)
These days it is no longer necessary to break with the Church of Rome, decapitate your unwanted spouse, wait for them to die or be the perfect gentleman and get caught with your trousers down. But if divorce is to signal a period of learning and moving on, rather than a battlefield that perpetuates bitterness and repeated mistakes we should have the option to end our marriages without assigning blame and have greater access to counselling to support us through the transition and help us move on positively.
Counselling for divorce and separations
Divorce counselling or separation counselling aims to help individuals come to terms with the emotions created by the end of a relationship. Reconciliation is not the objective of separation counselling. Instead it aims to help each individual reflect on the underlying emotions, deal with grief and anger, come to terms with what has happened and manage the impact of separation amicably.
Furthermore separation counselling can help individuals make the best of future relationships and parent apart successfully, improving outcomes for themselves and their children.
For more information contact our enquiries team on freephone 0808 802 0050 or complete an enquiry form.