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Divorce

Facts

In England and Wales, the Divorce, Dissolution and Separation Act 2020 allows ‘no-fault’ divorce.
Previously the five basic grounds for divorce were:
1.   Adultery
2.   Unreasonable behaviour
3.   Desertion
4.   The parties to the marriage have lived apart for at least two years and both consent to the divorce
5.   The parties have lived apart for at least five years.1
  • These still apply in Northern Ireland, with the first three grounds being ‘faults’ that can be committed by one spouse against the other, allowing the ‘innocent’ spouse to apply for a divorce. Grounds 4 and 5 are ‘no-fault’ grounds, simply requiring evidence of separation.
  • However, in England and Wales the changes have meant that a person can now divorce by merely stating that their marriage has broken down irretrievably. There is no requirement for ‘fault’, or even the agreement of their spouse. The law prescribes a minimum period of six months between application and the final divorce order.2
  • The Family Law (Scotland) Act 2005 dramatically reduced the amount of time required for a divorce on the grounds of separation in Scotland. The five-year period where one party does not consent was reduced to two years. Where both parties consent the time period was reduced from two years to one. The Act also abolished desertion as a ground for divorce; though adultery and unreasonable behaviour were retained.
  • Divorce was only legalised in England and Wales in 1857. Prior to that an Act of Parliament was needed to obtain a divorce. The 1857 Matrimonial Causes Act permitted divorce for the innocent party where they could prove their spouse had committed adultery.3 The grounds for divorce were widened in 1937 to include desertion, cruelty and incurable insanity.4
  • The 1969 Divorce Reform Act restated the three existing fault grounds of adultery, desertion and cruelty (widened to ‘unreasonable behaviour’) and added the two ‘no-fault’ separation grounds. Scotland and Northern Ireland subsequently adopted the same five grounds.
  • The so-called ‘special procedure’ introduced in England and Wales in 1973 meant a divorce could be conducted by post. There is a similar system in Scotland. In Northern Ireland there must be a proper hearing before a judge where the reasons are explained. There is no special procedure where divorce is obtainable by post.
  • Since 2018 residents of England and Wales have been able to apply for divorces online, and this has become compulsory in virtually all applications.5

Key Statistics

  • In 2019, there were 117,723 divorces in the UK.6 The percentage of married couples which divorce each year remains under 1% in England and Wales.7
  • An estimated 42% of marriages in England and Wales end in divorce.8 The most recent figures available show that almost half (45%) of divorces in England and Wales involved children aged under 16 living in the family.9
  • The divorce rate in England and Wales fell from a peak of 14.2 per thousand married population in 1993 to 8.4 in 2020.10 This is partly due to the growth of cohabitation and correspondingly fewer people getting married – the percentage of the eligible population that was married in 2002 was around 55%, and this had fallen to approximately 50% by 2020.11 Those who do get married are more likely to believe in the importance of it and be committed to it.12
  • Estimates from 2021 show that just over a fifth (22%) of dependent children in the UK live in lone parent families (which includes divorced, separated or widowed). It still needs to be remembered that around 64% of children live in a family headed by a heterosexual married couple.13
  • In 1936 there were some 5,788 divorces. Then came the more liberal provisions of the 1937 Matrimonial Causes Act: in 1939 there were 9,144 divorces.14
  • By 1961 there were around 27,000 divorces. In 1972 (the year after the 1969 Divorce Reform Act came into force) the number was around 125,000.15
  • For those married in 1968 in England and Wales, 20% of marriages had ended in divorce by their 15th wedding anniversary. For those married in 2005, 29% of marriages had ended by this time.16

Given the devastating effects of divorce on adults, children and society (see below), even those who do not hold to a Christian view of divorce should be opposed to measures which make divorce even easier. The statistics clearly show that every time the law on divorce has been liberalised, the number of divorces has increased.

Biblical arguments 1: The grounds for divorce

  • God spelled out the importance of marriage for mankind right at the beginning of human history when, after Eve was created for Adam, the Bible records: “For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh” (Genesis 2:24).
  • Jesus Christ was asked a specific question about ‘no-fault’ divorce by the Pharisees: “Is it lawful for a man to divorce his wife for any and every reason?” (Matthew 19:3). His answer was emphatic “What …God hath joined together, let not man put asunder” (Matthew 19:6, KJV).
  • Christ said that the provision in the Law of Moses permitting a man simply to write a certificate to divorce his wife was allowed only because of the hardness of men’s hearts. Christ rejected this by appealing directly to Genesis: “But it was not this way from the beginning.”17
  • The apostle Paul emphasised the sanctity and permanence of marriage vows when he compared the relationship between a husband and wife with the relationship between Christ and the Church.18 Such doctrine brings home the seriousness of divorce in the eyes of God.
  • ‘No-fault’ divorce is unknown in Christian theology.
  • Jesus’ teaching in Matthew’s Gospel is cited as allowing adultery to be a basis for divorce (Matthew 5:32, 19:9). Some Christians also believe that in 1 Corinthians 7:15 Paul allows for desertion as a ground of divorce. Both of these are clearly grounds of ‘fault’.

Church viewpoints on the grounds for divorce

  • There are sincerely held differences of view amongst creedally orthodox Churches on the question of remarriage after divorce. There are essentially two views. Some do not allow remarriage at all; others permit it only for the innocent spouse.
  • Amongst Protestants, theological conservatives can be found in both groups.
  • The Church of England teaches that marriage is for life. Its longstanding position until relatively recently was to permit divorce but not remarriage since it was argued that in God’s sight the couple were still married.19 However, in 2002 the House of Bishops issued a guidance document to clergy stating that in exceptional circumstances, a divorced person may marry again in church during the lifetime of a former spouse.20 The Church of England’s canon law remains unchanged.21
  • The Roman Catholic Church believes divorce is immoral and a grave offence against the natural law. It therefore considers remarriage while both husband and wife are alive as adultery. The Roman Catholic Church has said: “It can happen that when one of the spouses is the innocent victim of a divorce decreed by civil law; this spouse therefore has not contravened the moral law. There is a considerable difference between a spouse who has sincerely tried to be faithful to the sacrament of marriage and is unjustly abandoned, and one who through his own grave fault destroys a canonically valid marriage.”22
  • The Westminster Confession (1647) associated with Presbyterian Churches permits divorce and remarriage for the innocent party in the case of adultery.23
  • Historically for centuries the tendency was for churches of all denominations not to permit any divorce at all. They only allowed legal separation (i.e. non-cohabitation) of spouses and even then only where one spouse had committed a serious sin against the other, such as adultery. Both parties remained legally married and therefore could not remarry.
  • Outside the UK the reformers permitted remarriage after divorce for the innocent party. But despite the theoretical possibility of divorce and remarriage, after a detailed study of court records in Reformation Germany, Joel Harrington found that divorce was “a relatively little exercised option”.24 The possibility of collusion in order to obtain a divorce “was considered so great by Protestant authorities that they would not even consider allowing remarriage unless the innocent spouse was free of any suspicion and willing to endure a series of legal and financial obstacles intended to dissuade him or her from such a course”.25

Biblical arguments 2: The case for promoting reconciliation

  • The Bible is clear that marriage is intended to be lifelong. This is for everyone’s good irrespective of whether the married couple are Christians.
  • Even where there are grounds for divorce in a particular case Christians have always advocated that strenuous efforts at reconciliation must be attempted first. In 1 Corinthians 7:10 Paul specifically requires spouses to stay together, or, if they have separated, to attempt reconciliation. When this fails, legal separation (where the couple are still married in law) has often been seen as preferable to divorce.
  • Christians must press for the law and public policy to support reconciliation for couples whose marriages are in difficulty.
  • During the passage of the Family Law Act 1996, Christians sought to extend the period before a ‘no-fault’ divorce could be obtained. This would have given more time for couples to work out their differences and save their marriages. In the event the 1996 Act’s provisions were never implemented (see below).
  • Many divorced couples know how the divorce process can be like a conveyor belt. Even so, a significant number of people change their minds. Every year an average of around 10% of husbands or wives drop their divorce petitions. Typically this means over 10,000 divorces are dropped per year. Of course, not all of these couples will be finally reconciled, but it shows that people are dropping divorce proceedings in very large numbers. 26

Key Points

‘No-fault’ divorce

The 1996 Family Law Act replaced the 1969 Divorce Reform Act with ‘no-fault’ divorce in England and Wales. However, the ‘no-fault’ divorce provisions of the 1996 Act were repealed without ever coming into force, as the pilot schemes showed them to be unworkable.27

However, momentum for a change in the law gradually built up. In April 2015 Baroness Hale, then Deputy President of the UK Supreme Court, again called for the introduction of ‘no-fault’ divorce.28

In 2017, the Nuffield Foundation report ‘Finding Fault? Divorce Law and Practice in England and Wales’, led by Professor Liz Trinder, was published. The report said the law should be reformed “to remove fault entirely”.29

The following year, Baroness Butler-Sloss introduced a Private Member’s Bill to require the Lord Chancellor to conduct a review of divorce law in favour of no-fault divorce, although the Bill made little progress.30

Also in 2018, the Supreme Court ruled in Owens v Owens that Tini Owens could not divorce her husband of 40 years until five years’ separation had passed, after she had tried to seek a divorce on the grounds that she was unhappy.31

The case was used to call for ‘no-fault’ divorce, as it supposedly showed someone who was ‘trapped in a loveless marriage’. For example, Prof Trinder decried the decision saying: “Mrs Owens must live as the equivalent of a ‘chained wife’ for five years before she can legally divorce, even though everyone acknowledges that the marriage has long since died”.32 But the Owens case is the exception that proves the rule. It made headlines because it is so rare for even a contested divorce to be refused by the courts.

Later that year, the Government published a consultation paper Reform of the legal requirements for divorce. In response, the then Justice Secretary, David Gauke, announced that legislation would be introduced to change the law by removing the legal requirements about spousal misconduct or to have lived separately for up to five years.33

However, in 2019, the Bill was halted as a result of the end of the Parliamentary session.

But the Queen’s Speech in December 2019 reintroduced the Government’s plans for a Bill.34 It passed through Parliament and received Royal Assent on 25 June 2020.35

In April 2022, the Divorce, Dissolution and Separation Act 2020 came into force.

The Government and campaigners maintained that introducing a no-fault law was necessary because being required to cite fault leads to acrimony between the divorcing parties. But it is a mistake to blame the process of divorce for ill feeling. Acrimony will have brought many of the couples to the point of divorce. It is often the disputes over assets and children after a divorce that leads to the most resentment. The legal procedures for these disputes were not amended by the 2020 Act. The Act also changed more than the fault grounds. Some 48 per cent of divorces in England and Wales in 2020 took place on the separation facts, where no fault has to be cited.36 Yet the 2020 Act scrapped the non-fault separation facts too.

The Exeter Family Study found that divorce does not usually reduce conflict for the children. In fact the opposite is true:
“…the experience of most children whose parents have divorced is of increased conflict over an extended period, with the child involved to an extent that may not have been the case while the marriage lasted”.37

The consequences of the high divorce rate

The breakdown of the traditional family structure has many consequences for society, including financial consequences.

  • A 2018 estimate placed the total cost of family breakdown to the UK at over £51 billion a year.38
  • A child of separated parents has a higher probability of:
    • Performing less well in school;
    • Being homeless;
    • Being in trouble with the police;
    • Emotional and behavioural problems;
    • Experiencing debt;
    • Teenage pregnancy;
    • Needing medical treatment;
    • Leaving school/home when young;
    • Depressive symptoms;
    • Elevated levels of smoking, drinking and drug use during adolescence and adulthood.39
  • Figures from the Department for Work and Pensions show that 65% of 12 to 16-year-old children in low-income households do not live with both birth parents. 40
  • A study published in the Journal of Health and Social Behaviour showed that the damage to health caused by divorce persists even after remarriage: “among the currently married those who experienced one divorce or multiple disruptions show worse health on every dimension than the continuously married”.41
  • Divorce has been shown to be associated with a greater risk to men of heart attacks, strokes, cancer, and dying earlier.42
  • A report from One plus One has also shown that adults who divorce have a greatly increased incidence (compared to those who remain married) of heart disease, cancer, alcoholism and suicide.43
  • As Professor A H Halsey, the late Professor of Social Policy at Nuffield College, Oxford and co-author of English Ethical Socialism, once stated:
    “No one can deny that divorce, separation, birth outside marriage and one-parent families as well as cohabitation and extra-marital sexual intercourse have increased rapidly. Many applaud these freedoms. But what should be universally acknowledged is that the children of parents who do not follow the traditional norm (i.e. taking on personal, active and long-term responsibility for the social upbringing of the children they generate) are thereby disadvantaged in many major aspects of their chances of living a successful life. On the evidence available such children tend to die earlier, to have more illness, to do less well at school, to exist at a lower level of nutrition, comfort and conviviality, to suffer more unemployment, to be more prone to deviance and crime, and finally to repeat the cycle of unstable parenting from which they themselves have suffered… The evidence all points in the same direction, is formidable, and tallies with common sense.44
  1. 1For England and Wales see Section 1(2) of the Matrimonial Causes Act 1973. For Northern Ireland see Article 3 of The Matrimonial Causes (Northern Ireland) Order 1978. Technically there is one ground – ‘irretrievable breakdown’ – proved by one of five facts.
  2. 2‘“Blame game” ends as no-fault divorce comes into force’, Gov.uk, 6 April 2022, see https://www.gov.uk/government/news/blame-game-ends-as-no-fault-divorce-comes-into-force as at 22 September 2022; Divorce, Dissolution and Separation Act 2020, Section 1
  3. 3Cretney, S M, Elements of Family Law, 6th edition, Sweet & Maxwell, 1992, page 30
  4. 4Cretney, S M and Masson, J M, Principles of Family Law, Sweet & Maxwell, 1997, page 307
  5. 5‘Divorce Goes Digital’, The Family Law Co., 19 October 2021, see https://www.thefamilylawco.co.uk/blog/divorce-and-finance/divorce-goes-digital/ as at 22 September 2022
  6. 6Vital statistics in the UK: births, deaths and marriages, Office for National Statistics, 3 December 2021, see https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/datasets/vitalstatisticspopulationandhealthreferencetables as at 22 September 2022
  7. 7Divorces in England and Wales: 2020, Office for National Statistics, 1 February 2022, Table 4a, see https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2020 as at 22 September 2022
  8. 8Divorces in England and Wales, 2011, Office for National Statistics, 20 December 2012; Divorces in England and Wales: 2020, Office for National Statistics, 1 February 2022, Table 8a
  9. 9Divorces in England and Wales: 2014, Office for National Statistics, 5 December 2016, Table 8, see https://www.ons.gov.uk/file?uri=/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/datasets/divorcesinenglandandwales/2014/divorcetables2014.xls as at 22 September 2022
  10. 10Divorces in England and Wales: 2020, Office for National Statistics, 1 February 2022, Table 4a, see https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2020 as at 22 September 2022.
  11. 11Population estimates by marital status and living arrangements, England and Wales: 2020, Office for National Statistics, 16 December 2021, Table 1 & 4 see https://www.ons.gov.uk/file?uri=/peoplepopulationandcommunity/populationandmigration/populationestimates/datasets/populationestimatesbymaritalstatusandlivingarrangements/current/2021ewpublicationtable2.xlsx as at 22 September 2022. The proportion of the eligible population who are divorced has remained fairly steady (7.4% in 2002 and 7.8% in 2020). The percentage of widows or widowers has decreased (from 8.14% in 2002 to 6.5% in 2020). Compare this with an increase in the population who cohabit but were never married or civil partnered (from 6.75% in 2002 to 10.5% in 2020).
  12. 12‘Why is Divorce Declining in the UK?’, Institute for Family Studies, 3 October 2018, see https://ifstudies.org/blog/why-is-divorce-declining-in-the-uk#:~:text=For%20me%2C%20the,initiated%20by%20wives as at 22 September 2022.
  13. 13Families and households in the UK: 2021, Office for National Statistics, 9 March 2022, Table 3 & 4, see https://www.ons.gov.uk/file?uri=/peoplepopulationandcommunity/birthsdeathsandmarriages/families/datasets/familiesandhouseholdsfamiliesandhouseholds/current/familiesandhouseholds2021accessibilitycorrected.xlsx as at 22 September 2022; Marriages in England and Wales: 2019, Office for National Statistics, 19 May 2022, Table 1a, see https://www.ons.gov.uk/file?uri=/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/datasets/marriagesinenglandandwales2013/2019/marriages2019workbook.xlsx as a 22 September 2022
  14. 14Vital Statistics: Population and Health Reference Tables, Office for National Statistics, November 2016, see http://www.ons.gov.uk/file?uri=/peoplepopulationandcommunity/populationandmigration/populationestimates/datasets/vitalstatisticspopulationandhealthreferencetables/current/annualreferencetablesummer2016final.xls as at 22 September 2022
  15. 15Vital Statistics: Population and Health Reference Tables, Office for National Statistics, November 2016, see http://www.ons.gov.uk/file?uri=/peoplepopulationandcommunity/populationandmigration/populationestimates/datasets/vitalstatisticspopulationandhealthreferencetables/current/annualreferencetablesummer2016final.xls as at 22 September 2022
  16. 16Divorces in England and Wales: 2020, Office for National Statistics, 1 February 2022, Table 8a, see https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2020 as at 22 September 2022.
  17. 17Matthew 19:8
  18. 18Ephesians 5:22-29
  19. 19GS 1361 Marriage in church after divorce, The Archbishops’ Council, Church of England, 2000. For an explanation of the Anglican view see Cornes, A, Divorce and Remarriage: Biblical Principles and Pastoral Practice, Hodder & Stoughton, 1993. Cornes writes from a conservative evangelical perspective.
  20. 20GS 1449 Marriage in Church after Divorce, Report by the House of Bishops, Church of England, July 2002, pages 404-438
  21. 21Canon B30 – Of Holy Matrimony, Church of England
  22. 22Catechism of the Catholic Church, Chapter 4: Offenses Against the Dignity of Marriage, paras 2384-2386
  23. 23Westminster Confession of Faith, Chapter 24: Of Marriage and Divorce, para 5
  24. 24Harrington, J F, Reordering marriage and society in Reformation Germany, Cambridge University Press, 1995, page 269
  25. 25Ibid, page 270
  26. 26Family Court Statistics Quarterly April to June 2016, ONS, Ministry of Justice Statistics bulletin, September 2016, Table 8, see https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2016 as at 14 February 2017; Family Court Statistics Quarterly April to June 2015, ONS, Ministry of Justice Statistics bulletin, September 2015, page 16, see https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2015 as at 14 February 2017
  27. 27Divorce: repeal of Family Law Act 1996 Part 2, House of Commons Standard Note, SN/HA/1409, 12 February 2013, page 1
  28. 28The Times, 9 April 2015
  29. 29Finding Fault? Divorce Law and Practice in England and Wales, Nuffield Foundation, 2017, page 10, see https://www.nuffieldfoundation.org/sites/default/files/files/Finding_Fault_full_report_v_FINAL.pdf as at 22 September 2022
  30. 30No-fault divorce, House of Commons Research Briefing, 10 April 2022, see https://commonslibrary.parliament.uk/research-briefings/sn01409/#:~:text=In%20July%202018,any%20further%20progress as at 22 September 2022
  31. 31Owens v Owens (2018) UKSC 41
  32. 32‘Government encouraged to make the first major changes to divorce legislation for nearly 50 years’, Nuffield Foundation, 25 July 2018, see https://www.nuffieldfoundation.org/news/government-encouraged-to-make-the-first-major-changes-to-divorce-legislation-for-nearly-50-years as at 22 September 2022
  33. 33Reducing family conflict: Government response to the consultation on reform of the legal requirements for divorce, Ministry of Justice, April 2019, see https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/results/reducing-family-conflict-consult-response.pdf as at 22 September 2022
  34. 34The Queen’s Speech, Prime Minister’s Office, 19 December 2019 , page 77, see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/853886/Queen_s_Speech_December_2019_-_background_briefing_notes.pdf as at 22 September 2022
  35. 35Divorce, Dissolution and Separation Act 2022, UK Parliament, Stages, see https://bills.parliament.uk/bills/2524/stages as at 22 September 2022
  36. 36Divorces in England and Wales: 2020, Office for National Statistics, 1 February 2022, Table 6a, see https://www.ons.gov.uk/file?uri=/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/datasets/divorcesinenglandandwales/2020/divorcesworkbook2020final31012022144352.xlsx as at 23 September 2022
  37. 37Cockett, M and Tripp, J, The Exeter Family Study: Family breakdown and its impact on children, University of Exeter Press, 1996, page 58
  38. 38‘Cost family failure 2018 update’, Relationships Foundation, 29 January 2018, see https://relationshipsfoundation.org/publications/pressreleases/cost-family-failure-2018-update/ as at 22 September 2022
  39. 39See Divorce and separation: The outcomes for children, Foundations series, Joseph Rowntree Foundation, June 1998. The full report is published as Rodgers, B and Pryor, J, Divorce and separation: The outcomes for children, Joseph Rowntree Foundation, 1998; Why Family Matters – A comprehensive analysis of the consequences of family breakdown, The Centre for Social Justice, March 2019, page 4; ‘Timing of parents’ split matters for children’s mental health, new research reveals’, University College London, 17 January 2019, see https://www.ucl.ac.uk/ioe/news/2019/jan/timing-parents-split-matters-childrens-mental-health-new-research-reveals as at 22 September 2022
  40. 40Social Justice: transforming lives – One year on, Department for Work and Pensions, April 2013, page 13, Figure 2
  41. 41Hughes, M E and Waite, L J, ‘Marital Biography and Health at Mid-Life’, Journal of Health and Social Behaviour, 50(3), September 2009, pages 344-358
  42. 42Davidsen, K, Carstensen, S, Kriegbaum, M et al, ‘Do partnership dissolutions and living alone affect systemic chronic inflammation? A cohort study of Danish adults’, Journal of Epidemiology and Community Health, 76(5), 2022, pages 490-496
  43. 43McAllister, F (Ed.) ‘Marital Breakdown and The Health of the Nation’, 2nd edition, One plus One, 1995, pages 16, 20 and 23
  44. 44Halsey, A H, quoted in Dennis, N and Erdos, G, Families Without Fatherhood, 2nd edition, IEA, 1993, page xii