Those that argue for and in favour of the fault-based divorce system such as Richard1 argue that even although the law may discourage the element of blame for divorce it is viewed upon as unrealistic as there is bound to be a blame on one of the parties. The definition given to a no-fault divorce has lead us to believe that those who have divorced have views that they have separated with a similar detached view when in reality one may be happy the other may be emotionally upset and angry and these feelings tend to usually get in the way when deciding arrangements about finance and children. This leads us to believe that the law doesn’t do anything to relieve the situation but does the exact opposite. Furthermore, psychologists argue that blame is a major psychological element of the whole divorce procedure and that even making assertions of fault can be cathartic2. Some argue that a courtroom is not the place to talk about these issues and that the alternative method of mediation may benefit them as it is in a private environment and will help them focus on the future than of the past. Furthermore, this way can also save a lot of money in the view of the average taxpayer. 3
Marriage can be undermined where a no- fault based divorce system exists as it allows either one of the parties of the marriage to terminate the marriage whenever they feel right. The reasoning why divorce undermines marriage is that it destroys the main goal of marriage which is being a life-long obligation. Rowthorn4 agrees with the view that a no-fault divorce system undermines the belief of commitment which is key to the nature of marriage.5 Baroness Young has argued that “the message of no fault is clear. It is that breaking marriage vows, breaking a civil contract, does not matter. It undermines individual responsibility. It is an attack upon decent behaviour and fidelity. It violates common sense and creates injustice for anyone who believes in guilt and innocence.”6 However, it can also be argued that the fault-based system makes it harder for someone to gain a divorce without an actual reason to end the long-term commitment that is in place already.
On the other hand, supporters of the no-fault based system argue that it is impossible to allocate blame. This is due to practical hardships in discovering the facts of the case as the only witnesses are the husband and wife in reality. Furthermore, a no fault based system will reduce the bitterness, anger and frustration that has been caused by the fault-based system as discussed previously and may help descend domestic abuse. Moreover, no fault based system is serves a useful purpose in empty shell marriages this is where both parties are not interested in the marriage and are forced to live together.
In conclusion, it is visible that the existing law does not give adequate contemplation towards the needs of children. The system, which is no-fault based, has the propensity to increase bitterness between both parties even though it is seen as a quick process. Even if the law is private in the sense that the behaviour of both parties is often referred in the facts of the divorce when unreasonable behaviour is referred to and their behaviour is often manipulated to permit the petitioner to acquire a quicker divorce. Whereas it has been revealed that a swift divorce is of itself illustrative of society’s needs and that it must be attained through a complicated system validates that a reform of the law within this area is vital and needed.
1 Richards M, ‘Divorcing Children: Roles for Parents and the State’ in M Maclean and J Kurczewski (eds), Families, Politics and the Law: Perspectives for East and West Europe (Clarendon Press 1994) 249
2 Hood (2009)
3 Rasmusen (2002)
4 Rowthorn (1999).
5 Lewis (1999: 125).
6 HL Deb 29 February 1996 vol 569 cc1610-70