How can a divorce be "good"?

Last week was Good Divorce Week. Talking about divorce as being “good” does sound a bit odd. You would not talk about “good cancer” or “good poverty”. How can a divorce be good?

Resolution (formerly known as the Solicitors Family Law Association) argue that a good divorce is possible. Obviously they’re not pretending that divorce is not painful or distressing. What they mean is that it is possible to divorce is such a way that you and your ex can both reach an agreement about how to end your marriage with the minimum of discord.

Some couples can manage this. On occasions, I act for clients who are able to put aside the pain and distress and can work together in a hugely positive way to ensure that their needs, and most importantly their children’s needs, are met and they achieve an outcome that they both believe is fair. These clients are the ones who are most likely to use the collaborative process.

However, all too many clients find this impossible. The pain of their marital breakdown is too much. In those cases, good family solicitors will discourage them from taking steps that will needlessly add to the hostility and conflict. Most family solicitors are members of Resolution and abide by its Code of Practice, a new version of which has been launched this week.

Resolution has campaigned this week to reform the divorce laws. At the money, if you want to divorce, and do not want to wait until you have been separated for at least two years, possibly longer, the only way to divorce is to allege that there has been adultery or unreasonable behaviour. This does nothing but add to the hostility unnecessarily and it serves to distract the parties from sorting out arrangements for their children or dividing their finances. It just poisons the atmosphere further. What many people do not realise is that it makes not the slightest legal difference to what happens about the kids or money.

The court is all too aware that what is alleged in the divorce petition may not be the cause of the breakdown of the marriage. It is just what gives rise to the ability to prove that the marriage has irretrievably broken down. The adultery or unreasonable behaviour may be a symptom of the breakdown of the marriage, not its cause. There may have been misconduct on both sides to a greater or lesser extent (in fact, in my experience, divorce is relatively rarely entirely only one side’s party’s fault.)

There may be a cathartic effect for a party who feels aggrieved to be able to say “I divorced him/her for adultery or unreasonable behaviour”, and I do understand that some people understandably feel a need for justice to be done. However, the reality is that it simply doesn’t help. It should be possible for couples to divorce on a no-fault basis.

There are those who argue that no-fault divorce would cause the divorce rate to rise. I don’t believe that there is any real evidence to support that. It is worth noting that the US divorce rate has fallen significantly recently, yet no-fault divorce is possible in all fifty states.

Christian groups have not been receptive to Resolution’s calls for no-fault divorce this week. The Christian Institute rather hilariously claimed that lawyers marched on parliament on Wednesday to demand no-fault divorce. In fact, there was some very civilised and positive lobbying at a prearranged event at the Houses of Parliament. Christian groups have accused Resolution of wanting divorce to be quicker and easier.

No-fault divorce is not about making divorce easier or quicker. It is already easy to get a divorce, you just have to be unpleasant about it, start pointing fingers and allege adultery or unreasonable behaviour.

Nor is no-fault divorce going to be quicker. It is likely to take just as long. When the Conservative government tried to introduce no –fault divorce in the Family law Act 1996 every indication was that, with its requirements for people to attend Information Meetings months before any proceedings could be issued and then “periods for reflection and consideration”, it was going to take longer than before. Admittedly the 1996 legislation was a complete dog's breakfast and was quietly abandoned by the subsequent Labour government without being implemented, but there’s no reason why it is going to be any faster. In any event, the Family Court is so slow these days that the only thing that will make it quicker is a significantly larger investment in staffing and IT to allow it to actually process the paperwork at a reasonable speed.

Christian opposition to no-fault divorce is difficult to fathom. I can understand if it is because they are opposed to all sorts of divorce in principle. But divorced Christians are not unusual. Those opposed to no-fault divorce do not seem to realise that the conflict caused by divorce is damaging to society and to families.

Presumably as Christians, they think that war is a bad thing. So why do they think that conflict in divorce is something that should be preserved?