24 Britain The Economist April 9th 2022
No-faultdivorcePutting asunder
T
hosewhomGodhasjoinedtogether,
let no one put asunder. Or so the reso
nant words of the Church of England’s
marriage ceremony have it. The laws of
England, however, have typically taken a
more moderate approach. For the past 150
odd years they have been footnoting that
fine phrase with occasions when a little
sundering might be suitable after all.
In 1857, for example, English law started
to allow divorce on the grounds of adul
tery, sodomy, rape and (unarguably, if un
expectedly) bestiality. From 1969, the law
accepted “behaviour” as another reason, a
category largely intended to cover intoler
able behaviour and abuse—but one which
rapidly expanded. To date English law has
accepted as unreasonable behaviour not
just abuse but also making “shepherd’s pie
too often”, “not stacking the dishwasher
properly” and (naturally) “noisy eating”.
What English law has never allowed is
for a divorce to take place simply because a
couple wishes it to. That changed on April
6th. It is now possible to divorce swiftly in
England and Wales without one spouse be
ing at fault. Practically, the change is sim
ple: before this week, if you wished to di
vorce you would have had to pay £593
($780), fill in the form and tick one of five
boxes, such as “Behaviour” or “Adultery”,
for the reason, and then give details. Now
you still have to fork out £593 (state mo
nopolies, even digitised, rarely come
cheap). But you can merely tick one box
stating, with Hemingwayesque simplicity,
that: “I confirm that my marriage or civil
partnership has broken down irretriev
ably.” It is, says Nigel Shepherd, a family
lawyer and campaigner for the change, “a
longoverdue reform”.
One measure of any reform’s ripeness is
the extent to which most people assume
that it has happened already. Boris John
son wrote in 2012 that he had been “flum
moxed” when asked whether he supported
gay marriage because “I thought it was al
ready legal” (it became so two years later).
Similarly, most people might assume it has
long been possible to divorce promptly in
England without resorting to blame. In
stead, for the past halfcentury, many di
vorcing couples who wished to end their
marriages swiftly found themselves com
pelled to, as one put it, “wildly vomit bile
onto a page and click ‘submit’”.
The reasons why England’s marital
blame game persisted for so long rangefromlegalfudgestoreligiousopposition
and moral disapproval. The reason it is
changing is because Britain has. More peo
ple are more accepting of divorce than ever
before. Although absolute numbers of
splits are decreasing, largely because mar
riages are (in 2020 there were 103,500 di
vorces, compared with a peak of 165,000 in
1993), ease with the idea of divorce is rising.
In 2018 British people were almost half
as likely to disapprove of parents with
young children divorcing as they were a
decade earlier. Institutionalised stigma
has all gone. As Daniel Monk, a law profes
sor, points out in “Fifty Years of the Divorce
Reform Act 1969”, divorced people were re
fused entry to the Royal Enclosure at Ascot
until 1955. Now many of those found in
that Enclosure—including the first in line
to the throne—are themselves divorced.
Indeed, few families offer a finer potted
history of English divorce than the royal
one. It was easier for Henry VIII to separate
England from the Catholic church, and his
spouse’s head from her neck, than himself
from his wives. By the time Edward VIII ac
ceded to the throne in 1936, divorce had be
come legally easier—but remained socially
costly. When Edward informed the prime
minister, Stanley Baldwin, that he intend
ed to marry the divorced Wallis Simpson,
Baldwin responded that this was impossi
ble. Today, not only is Prince Charles di
vorced, he is married to a divorced woman.
Increasing social acceptance did not
immediately lead to increasing legal simplicity. Divorce and absurdity have been
joined together for decades as a result. In
the 1930s “hotel divorces”, in which an
“adulterous” husband would hire a hotel
room (Brighton was popular), a girl and a
photographer, in order to be framed in an
act of apparent infidelity, were so common
that they were satirised by Evelyn Waugh.
Today, “unreasonable behaviour”, once
expected to be a minor cause of divorce, is
the commonest reason: in 2019 it was cited
by 47% of wives and 34% of husbands.
Whether or not the behaviour involved tru
ly is “unreasonable” is rarely scrutinised:
divorce petitions are at least 14 pages long
and legal advisers (who can deal with up to
70 a day) have only a few minutes to read
each one. Until now, says Mr Shepherd, it
was “a game you have to play”.
And not a very amusing one, says San
dra Davis, a specialist in family law at
Mishcon de Reya, a law firm, who has rep
resented Princess Diana and Jerry Hall,
among others. Although citing unreason
able behaviour can make for interesting
cases (she recalls one wife who poured the
contents of her husband’s wine cellar
down the toilet, and another who immo
lated her partner’s prized matchbox collec
tion) she does not think it was helpful. “No
one takes divorce lightly,” she says. “As
night follows day, by requiring blame you
build in acrimony.” (Though acrimony will
not be absent: some worry that speedier di
vorces may lead to less time for sharing as
sets fairly.)
The blame game did the legal system
few favours. Justice might be blind, but she
dislikes seeming foolish. Once, the farce of
hotel divorces was embarrassing enough
to prompt legal change; now, the ludi
crousness of citing shepherd’s pie is help
ing to prompt more change. It is finally
possibletodivorce without blaming peo
ple. Andthelawlooks a little less of an ass
as a result.nCouples no longer have to assign blame to split speedily. About time