Following on from this article  in yesterday’s Telegraph, where LJ Wall claims he could “see no good arguments against no fault divorce, and that ” it was no longer important “to demonstrate that you were the ‘innocent’ party”.

Is it important to demonstrate that one party is “innocent”? There is certainly a moral argument to apportion blame on to the party who has, by their behaviour, acted outwith the marriage vows and what is deemed acceptable by the other spouse.  (I will come to this in a bit), but is there a legal argument as well? Would it be justified to effectively punish one party for their actions which caused the breakdown of the marriage? Marriage is a contract, and I would argue that where one party in that contractual relationship has not adhered to the terms of the contract, then perhaps some form of recompense [moral or otherwise] for the other party would be justified.

Lets look at this scenario – a couple are married for 10 years, 2 children,  wife gets bored, has an affair (or a string of affairs), refuses to discuss the problematic relationship, and throws a divorce petition at the husband – based on his alleged Unreasonable Behaviour (and, yes it does happen, frequently). Husband ends up having to move out, losing his home, half or more of the marital assets, and importantly, daily life with his children.  The wife retains the house, a good portion of the assets, the children and her new lover.  Does this seem fair to you? It certainly doesn’t to me.

Even in Scotland, where there are more “no-fault” divorces (partly due to the heavy burden of proof required for defended fault-based divorces, and partly due to the fact that all matters relating to finances and children need to be agreed first), a divorce Writ will still contain, within the Condescendence , a fairly detailed history of the breakdown of the marriage, and therefore effectively apportioning blame on one party. Ergo – a no fault divorce in Scotland isnt really no-fault as there still requires to be a valid reason for the separation to have occurred in the first place. My own Writ, based on 12 months separation contained no less than 10 citations of my now ex-husband’s behaviour leading to the breakdown of our marriage.

But is apportioning blame [or fault] on one party reasonable? Those who feel they were very much the wronged party and did not break the terms of the marriage contract would argue that, yes it is entirely reasonable to do so, and that the party at “fault” should not be rewarded financially – which often seems to be the case.

There are some who claim that we are moving forwards to a system where blame is more or less equally apportioned to both parties in a divorce, meaning that both parties have to assume the mantle of blame, even when one party is not at fault, leaving the party who feels they are innocent hugely aggrieved at the lack of accountability on the part of the party who has acted outwith the boundaries of the marriage.

The concept of no fault divorce was originally proposed as part of the Family Law Act 1996,, and in Scotland, where the law on divorce was given a huge shake-up in the 2006 Act, there were outspoken critisims that divorce was now too easy, and undermined the importance of marriage. I would agree with LJ Wall when he said that divorce is now “an administrative process” rather than a judicial one – its becoming little more than a form-filling exercise (leaving out the emotional side of divorce), and with online companies offering “quick and cheap” divorces, its becoming ever more part and parcel of the consumer lifestyle.  Its a very sorry state of affairs.

By moving towards a no-fault divorce system (or one where both parties are expected to share the “blame”) we are in danger of viewing marriage and spouses as disposal commodities, to be binned at the earliest convenience when one party grows bored of the other – it would be easier to divorce than work at saving the marriage. Morally, I can’t see there ever being a no-fault divorce, and surely, there would still be a need to demonstrate how the marriage has broken down for a decree to be issued – or are we now moving to a situation where getting a divorce is as easy as applying for house insurance?

If all is fair in love and war, then there is nothing fair about divorce.