A new private member’s bill promoted by a group of cross-party members of parliament is due to have its second reading tomorrow. It adds a new consensual, true no-fault avenue for divorce. It allows a divorce if both parties agree and sign a statement to that effect. The only judicial oversight is to see that the statement has been made in the absence of undue influence, unlawful threat or coercion. The author of this article, who is a divorce QC practising in family law for over 40 years, is not alone in stating emphatically that this bill is both welcome and overdue.

The existing facts which go to prove the sole ground for divorce (irretrievable breakdown of marriage) require either fault to be proved or else significant periods of separation (two years with consent and five years without consent) in all cases. The fault aspects require a proof of adultery, unreasonable behaviour or desertion for two years. This is a throwback to 1857 (when divorce was first permitted without the need to have your own personal private member’s bill go through parliament divorcing only you – yes really!). This is bad because currently if a couple both conclude their marriage is over, but they have not been separated for two years minimum, one party needs to begin the process by attacking the other in a hugely unpleasant and sometimes very aggressive way. Practitioners often do their best to present ‘weak’ petitions for divorce, but the allegations still remain unpleasant; importantly, they are matters of public record.

Every year hundreds of thousands of children and adults get caught up in family collapse. The cost overall to the state of the breakdown of relationships (both married and unmarried) is probably more than the defence budget. It is accordingly almost impossible to believe that the last time divorce law reform was looked at comprehensively and something was actually done about it was in 1971. The reforms brought about then were the result of Royal Commissions which sat in the 1950s. The last attempt to reform divorce law in the Family Law Act 1996 was sidelined by the 1997 election, now nearly 20 years ago.

The irrational opposition to this most modest reform trumpets that its limited provisions will cause a new flood of separations, to the harm of children and the economically weaker party in the marriage. Further, it implies that that couples will stay together, however unhappy they may be, if this private member’s bill is defeated. This is nonsense. Parties will separate if their relationship has broken down whatever the legal formalities describing their status. There is no longer stigma attached to being married but separated. This modest bill will not weaken marriage, but importantly it will make divorce slightly less of a family tragedy. We must support it powerfully and enthusiastically.

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Michael V Sternberg QC MCIArb FRSA is a family law barrister

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Photo: UK Parliament