ON Tuesday, the government announced plans to speed up divorce without fault but ignored two important facts: most divorces in ‘no fault’ jurisdictions still involve contests of fault, and fault is practically and morally useful to adjudication.
The government and mainstream media characteristically reduced a complex problem to a bipolar debate: you either support acrimony or not. Justice Secretary David Gauke claimed that the current divorce process ‘just makes it more acrimonious [and] tries to apportion blame in such a way that the couple are likely to have a weaker, poorer relationship than they would otherwise do’. He said his reform would end the ‘blame game’.
Channel 4 News broadcast a debate between a Christian defender of the sanctity of marriage and a self-appointed ‘divorce coach’ who thought that any allowance of fault is acrimonious.
No member of government or the media compared the ‘no fault’ jurisdictions.
In fact, the majority of divorces are contested – even in absolute ‘no fault’ jurisdictions. Rarely, both parties refuse to contest anything. Ironically, this often occurs when one is very clearly at fault and is ashamed about it. Fault resolves divorce. So why get rid of fault?
Yet here’s another troubling fact: even in no fault jurisdictions, either party may contest, and a contest usually involves arguments about fault.
Usually divorce involves not just a dissolution of marriage but division of property and – sadder – of the custody of children, animals, and other dependants. Even in no fault jurisdictions, fault usually matters to the adjudication. For instance, one party might contest an equal division of a joint bank account, claiming that the other party spent down that bank account since realising that a divorce was coming. Fault matters in such a case.
Fault should matter in the adjudication of custody too. If the divorce was prompted by one party’s poor parenting – perhaps exposing the child to drugs or violence – the court should know before adjudicating. Tragically, family courts are already biased: about 96 per cent of fathers are given less custody than mothers, a fact not well known because the mainstream academia and media are keen to present ‘most fathers get less custody’ as ‘most fathers get custody’. This is an almost completely sexist system: it assumes that women are better parents with a 96 per cent probability. Fathers struggle to raise the mother’s faults (judges often simply refuse to admit the claim). Fathers will find it even more difficult in a no fault system. Characteristically, BBC radio, BBC television, BBC news online and Channel 4 News all featured only women as divorcees, with experiences of men accusing them of fault and thus making their divorces ‘acrimonious’. Clearly, a no fault system is being set up to make family courts more anti-male.
Even if the parties don’t have children to fight over, the stereotypical claims of fault are easier to throw at a man (he hit me; he denied me money; he cheated on me; he never helped around the house).
Yet you don’t need to be gender equitable to be worried about a no fault system. Any party should expect a longer and more complicated divorce in the absence of both fault and no contest. With length and complication comes exploitation by lawyers and judges.
Plaintiffs are often surprised to walk into a family court in a no fault jurisdiction to find that themselves arguing mostly about fault. A malicious party can keep the case going indefinitely by raising new claims (eg: I never gave him the hamster; he never paid the rent; he has bank accounts he’s not declaring; he has sources of income he’s not declaring). Lawyers encourage extensions of the case because they are paid by the hour. And judges are corrupted by the increasingly liberal-progressive biases that gain them good press and promotion. Clients are less dependent on lawyers and judges when they face a simpler question: who can claim a fault-basis, such as adultery or unreasonable behaviour?
Take the State of California, one of the first absolutely no fault states. The average divorce takes 15 months from petition, excluding court delays. Every month of extension typically adds thousands of dollars in lawyer fees. The average divorce in California costs $17,500 per party (that’s an average, which doesn’t indicate the extremes), cases can take years and cost hundreds of thousands of dollars. The disruption to each party’s private business and employment, not to mention the stress, are unaccountable. Nor does the divorce price tag cover the myriad times the parties may return to court after divorce to claim that the other is non-compliant.
The British government claims that a fault divorce is adjudicated as quickly as three months, while a no fault divorce needs evidence of separation for at least a year (Scotland) or two years (rest of Britain). Yet the government isn’t intent on making divorce quick. It wants a minimum of six months to allow for reconsideration or cooling off. It’s the same minimum in California. It doesn’t work; it just gives more time for parties to raise new issues.
A fault-basis (eg adultery) allows for quickest and cheapest divorces, but fault or no fault is no guarantee that one will be quicker in the current system. In any case, duration is not the only parameter that matters here, even though it’s the one that the government and media are leading. What about fairness? No politician or journalist mentioned fairness on Tuesday.
Moving to a no fault system guarantees that the party with the least fault would suffer more in the reformed system, while the person with the most fault would suffer less in the reformed system. The reform would reward defaulters.
This is part of a wider problem in Britain: denying fault and thence accountability. Remainers frustrate Brexit but blame Brexiteers for supposedly impossible promises and intransigence; MPs want to betray their constituents but not be de-selected; politicians want to disobey popular will but be protected from public abuse; political parties betray their manifestos but complain about cynicism; the government wants to betray Brexit but not be judged by the electorate; the opposition wants to defy the first referendum but call a second; students can’t fail; criminals are victims too.
Welcome to no fault, unaccountable Britain.