The subject of ‘no fault divorce’ was, perhaps unsurprisingly, raised at the recent Conservative Party Conference. I have written about the subject before, see here, here & here.

I have put the phrase ‘no fault divorce’ in inverted comas because no fault divorce is already available after a period of 2 years separation with the other party’s consent, or 5 years without it.  Therefore what is actually being proposed is a modification of the current criteria for no fault divorce.

Ayesha Vardag, founder of the law firm Vardags, sought to persuade delegates to lobby their MPs to procure a change in the law.  However only around half of Tory members polled were in favour of a change and a majority of Tory councillors were opposed to a change, see here.

The arguments put forward by Vardag are commonplace, see here.  She argues that the parties are ‘forced’ to make accusations.  This is self-evidently not true, they are not forced to make up such accusations, they simply do not like the choices that they have, namely accept that they do not have legal grounds for a divorce at the relevant point in time or fabricate allegations of unreasonable behaviour.  As they do not like the choices available to them, they deny that they have a choice at all.  Existential philosophers call this practice ‘bad faith’

In this article, the writer states:

The court claimed that my reasons behind his “unreasonable behaviour” simply weren’t good enough. Granted, the workaholic tendencies and regular grumpiness might not have sounded unlivable (sic) to a judge, but when considered within the context of my life it amounted to a loveless marriage.”

Notice how the author appears to presuppose that there could be no normative justification for requiring a person to remain in a “loveless marriage”.  Indeed the possibility does not seem to cross her mind.  This is because she is arguing from a relatively modern, individualistic-hedonistic paradigm, which sees marriage as an institution solely aimed at maximising subjective happiness and not as an oath of fealty between a man and a women which was designed to regulate sexual behaviour and to ensure reproductive health within the societies which it exists.

If one accepts the premise of no fault divorce however, one can understand how the aforesaid periods of 2 years or 5 years, seem arbitrary. I suspect that the Conservative Party will doge this particular bullet and await the decision of the Supreme Court in the Owens’ case.