Christian Institute: “Is divorce law proposal compatible with ‘Ending Violence Against Women and Girls’ framework?”

• The Department of Finance has opened a consultation into liberalising divorce law.

• It follows a motion passed at Stormont last year calling for ‘no-fault divorce’, presumably removing the current options of divorce on the basis of unreasonable behaviour (17.1% of divorces), adultery (1.3%) and desertion (0.04%).

• But The Christian Institute asks whether removing ‘fault’ grounds is compatible with the Executive’s commitment to ‘Ending Violence Against Women and Girls’.

The Christian Institute’s Northern Ireland Policy Officer, James Kennedy, comments:

“The Executive says it is committed to its ‘Ending Violence Against Women and Girls’ framework. It says victims are to be given a voice and perpetrators held to account.

“Under the current divorce law, those who have suffered ill-treatment can make their case and have their suffering recognised in court. The proposal to remove ‘fault’ grounds would make this impossible.

“Previous legal reviews have said the fault grounds should be maintained for these very reasons. How could the Executive reconcile such changes with its VAWG commitments?”

Notes:

In the debate at Stormont in May 2024, MLAs accepted a motion calling on the Minister of Finance to bring legislation “to allow applications for a divorce without apportioning blame to either party”.

The motion appeared to be ill-informed: it is already possible under NI divorce law, with almost three quarters of couples already taking the ‘no-fault’ route according to the Department of Finance. The couple must be separated for two years (where both parties consent) or five years; enabling what lawyers have called a ‘negotiation and settlement ethos’^[1] – a system where mediation can take place and the practicalities of living apart arranged, ahead of a subsequent declaration of divorce. In a significant minority of cases, couples reconcile before the divorce is finalised and end up staying together.

Instead, copying the new system in England and Wales would see the removal of ‘fault’ grounds as an option in divorce proceedings. This has consistently been opposed in NI as it removes the possibility of justice for those who have been clearly wronged in their marriage, especially women who have been ill-treated by a spouse.

A recent article in the Law Society Gazette reflected that the new ‘no-fault’ system in England and Wales had resulted in “unintended consequences” and “moved blame further along [the] legal process”. Apportioning blame is “important to many people on a psychological level”, said James Grigg, head of family law at HCR Law, so now spouses are “littering financial statements with allegations of bad behaviour”.

The two previous reviews of Northern Ireland’s divorce laws recommended maintaining ‘fault’ grounds specifically for this purpose. The Family Justice Report (September 2017) stated that

“there are some instances where fault divorce … [is] acceptable as part of the traditional oral hearing concept before a judge. 8.32 The classic example is where one party, usually but not inevitably female, has suffered years of domestic violence and abuse and wishes, perhaps for the first time, to exercise the right to a public hearing of what she has suffered. That is an instance where a judge, in their discretion, might well determine that a public hearing was entirely justified.”

“8.34 It should also be recognised that domestic and sexual violence and abuse should not be ignored, not least because the evidence shows that the behaviour is often repeated in subsequent relationships. The family justice system should give a consistent message and may risk undermining the work on those issues if, in certain contexts, such behaviour in a petition based on unreasonable behaviour is simply ignored.”

The Office for Law Reform’s (OLR) review in 2000 is described in the present consultation document:

“44. OLR suggested several reasons for retaining a mixed system and, thereby, fault-based grounds for divorce. These included: that there was sometimes clear, unilateral fault in a relationship (e.g. in cases of domestic violence or adultery); that fault grounds sometimes provided a vital short cut to ending a violent or otherwise damaging relationship; and that, in the absence of fault grounds, accusations of fault can manifest in negotiations over the financial 28 settlement or custody…”

ENDS

[1] View of the Office for Law Reform, as quoted in the Department of Finance Consultation Document, para. 43.