Wedded to ‘fault’: the legal regulation of divorce and relationship breakdown

Abstract

In December 2005, the Civil Partnership Act 2004 came into force, thereby enabling same-sex couples to obtain formal legal recognition of their relationships. By modelling the provisions for dissolving such partnerships on divorce law, the government effectively transposed into the new regime both a fault-based ‘system’ and the accompanying sense that the law is vested with a role beyond that of simply ending relationships. In view of the recent, but ultimately failed, attempt to introduce no-fault divorce, this paper explores the role of law in this context. Drawing on a series of interviews with key individuals involved in the reform process, it explores how no-fault divorce was hijacked in a vain effort to provide simultaneous means of saving and ending marriage. In particular, the veto wielded by an influential group of idealistic conservatives during the latter stages of the reform process is identified. Given the inability or unwillingness of reformers to confront such conservatism with either a thoroughgoing defence of diversity, or the reality of the limited capacity of states to legislate for morality, the paper calls for a re-evaluation of the law’s role. It questions whether the Civil Partnership Act 2004 represents a missed opportunity to conduct such a re-evaluation and thus to point the way for future divorce reform.