Divorce is often bitter, messy and acrimonious. One reason is the law itself. The need for a spouse to mud-sling and lay blame is embedded in the “fault-based” system, long opposed by lawyers and judges but still unchanged.
The topic will soon be thrust back into the political arena. Ayesha Vardag, a top family lawyer, is launching a campaign for all divorce to be no-fault at the Conservative Party conference next month. She will speak on a panel with MPs including Richard Bacon, who has introduced a private member’s bill on the issue.
“I have been banging on about this for years,” Vardag says. “Family law is rotten to its heart because at the very centre of the process of couples parting and ending their marriage is this mud-slinging allocation of blame, and that sets the tone for a brutal, cruel parting between people that would otherwise, in many cases, be able to have a civilised and amicable parting as equals, friends, co-parents — because they are likely to have to still have a relationship and work together — and then move on with their lives.”
At present if couples do not want to cite fault as a reason for divorce, they must wait two years if both consent and five if one does not. “But waiting for two years is often not practicable,” Vardag says. “No one wants to do that, they can’t exist like that with their lives on hold. And they can’t separate properly as there are all sorts of tax implications to do with transferring the property on divorce.”
Spouses therefore have to go through a “delicate dance” of trying to make the divorce petition as weak and as uninsulting as possible, but strong enough to get through the courts, she says. “It is very unpleasant. I have seen may couples who feel well disposed to each other and have a great deal of love for each other, and they don’t understand it when I say, ‘You will have to say some bad stuff about your partner to get divorced in under two years.’ ”
Vardag has been called the “diva of divorce”. Her headline cases have been “big money”: the landmark decision on prenups involving the German heiress Katrin Radmacher; the Pauline Chai case, which led to the Laura Ashley boss Khoo Kay Peng being ordered to pay £64 million; and Michelle Young in her lengthy divorce with the late property tycoon Scot Young.
But scrapping fault-based divorce would not affect only the ultra-wealthy; there are more than 100,000 run-of-the-mill divorces in the UK each year.
Quite apart from Vardag’s professional work, she has experience of divorce herself. “Yes, it was acrimonious. I don’t think mine would have been friendly anyway, but there are plenty of others that would be, if the system did not dictate otherwise.”
The new divorce petition form makes matters even worse, she says. This includes a box where people can name the co-respondent — the third party when citing adultery. “By convention lawyers advised clients to leave this blank — it just drags another person in. Now, the new form makes this clearer and because we have so many litigants acting for themselves, they all fill it in.”
Why this campaign now? Vardag says she has reached a point where she wants to “make some kind contribution to the industry I work in”. She spends roughly one third of her time in the UK and the rest of the time in Italy and Dubai, working remotely. Her firm, Vardags, has offices in London, Winchester, Cambridge and Manchester, but regulatory complications prevented the setting up of a joint venture in Dubai.
Vardag’s “in your face” style raises eyebrows in the private world of divorce but with this campaign — launched with its own website — she is far from a lone voice. “I feel the time is right, the zeitgeist has finally matured,” she says.
To date, political efforts to change the law have failed. In the 1990s Lord Mackay of Clashfern, the Conservative lord chancellor, tried to reform divorce laws, but was blocked by backbench MPs and sections of the right-wing press. The measure was left on the statute book but has now been repealed. It is, however, in Labour’s manifesto.
Two things have blocked progress since: general apathy and politics. “As soon as one party adopts an agenda that seems to make divorce law in any way easier, less painful, less traumatic, the other side jumps up: ‘You are the party against the family, the party undermining marriage’, ” Vardag says.
John Oxley, an in-house barrister with Vardags and the campaign manager, says that the reform would reduce the emotional burden on couples and the administrative burden on the courts. He says: “We’ll lobby the government to reform family law so that it is appropriate for modern life.”
Vardag says: “The real question, whether it is right in 21st-century Britain to force couples through the Victorian farce of fault-based petitions, is one that only parliament can answer [. . .] the process of finding fault is antiquated and sets a conflictual path for the divorce process from the outset.” Nor, she adds, does it help to save marriages. “It is time that the government stepped in and brought about meaningful reform to our outdated divorce laws.”