The Conservative Case for Liberalizing Divorce

Britain has finally passed a new law allowing for no-fault divorce, all without a culture war.

Arsh Raziuddin / The Atlantic

In October 2011, Britain’s prime minister, David Cameron, announced that his government would legalize gay marriage. “Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other,” he told his party’s activists. “I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.”

It was one of the most consequential political statements of the decade, reframing an issue of equality—traditionally a left-wing preserve—as one of commitment and stability, values that have traditionally appealed to the right. Cameron damped down a culture war rather than inflaming one, at a time when 22 percent of Britons thought gay relationships were “always wrong.”

Cameron is long gone, with Boris Johnson now leading both the party and the country, but the Conservatives have repeated the trick. A new law passed this month will finally—after more than three decades of campaigns—create a system of no-fault divorce. Introducing the bill last summer, the then justice secretary, David Gauke, told the House of Commons, “I agree that marriage has long proved its worth for bringing up children, but the reality is that not all marriages last. The law should deal with that reality as sensibly as it can.”

During the debate over the legislation, many other Conservatives spoke in support of it. “Marriage is a very serious, lifelong commitment, and we all enter into it in that spirit,” said one, Anne Marie Morris. “It is very clear that it is the best outcome for a stable family life, and, indeed, delivers the best outcome for children. But we live in the real world.” Even the staunch social conservative Fiona Bruce, a vocal opponent of liberalizing abortion, told the Commons, “I accept that not every marriage can be maintained and that it is sometimes better for one to end.” Only 16 members of Parliament voted against the second reading of the Divorce, Dissolution and Separation Bill this year. It passed its third and final reading on June 17 without needing a vote.

When making his case in Parliament, Gauke was helped by the fact that the current legal system in Britain for ending a marriage is widely agreed to be a mess. Unless one half of the couple agrees to take the blame for the breakdown of the relationship, through adultery, desertion, or “unreasonable behaviour,” the couple must be separated for two years. Even then, to use separation as grounds for divorce, both parties must agree that the marriage is over—otherwise the waiting period is five years. In 2018, a woman named Tini Owens was told by a court that she could not obtain a divorce after two years apart because her husband refused to accept that they would not reconcile. (It is hard to imagine taking his wife to court made that possibility more likely.)

Gauke outlined how the existing adversarial system harmed youngsters, who were caught in the middle, and who often ended up being used as pawns. In doing so, he relied on one of the most well-worn socially conservative arguments in existence—Won’t someone think of the children?—to pass a piece of socially liberal legislation.

Borrowing the clothes of your ideological opponents is an underrated political technique. When former Prime Minister Tony Blair promised to be “tough on crime, tough on the causes of crime,” it was a pledge to address inner-city deprivation cloaked in the right-wing language of law and order. A later Labour leader, the much more left-wing Jeremy Corbyn, pulled off a similar move after a 2017 terror attack in London. Support for the police is a position associated with the right, but Corbyn defended the service by winding his remarks into a criticism of austerity, arguing that the government was trying to “protect the public on the cheap.” Look right, talk left, and vice versa: This is how you reach swing voters.

Unfortunately, examples such as these also reveal how much more attuned we are to tribal signaling—whether politicians are speaking the language of our “side”—than policy detail. Selling liberal policies in conservative clothes might reach the middle, but it won’t get you much credit from your own supporters.

It is notable how little media commentary there has been around divorce reform in Britain, particularly in comparison with the government’s recent decision to drop changes to the legal framework of gender transition. (There were more than 100,000 divorces in England and Wales in 2017, compared with 364 applications for a gender-recognition certificate.) Gender has become a culture war, while divorce has not—and without that divisive framing, a significant change to the law garnered little notice. This is politics without the emotional buzz of triumphing over an enemy, and without partisans on both sides being able to attach themselves to a cause that allows them to signal their values. It is just … good legislation.

The “fault” basis of divorce is a relic of the 20th century, when ending a marriage was seen as a shameful failure that required a guilty party. Britain introduced separation as a grounds for divorce in 1969, for the first time giving a neutral reason to end a marriage. But couples still had to prove that they were separated, which was difficult for those on low incomes, who perhaps shared a social-housing tenancy, or where one partner did not work. And even if they could live apart, the process was still slow. Couples who wanted a speedy divorce often had to exaggerate the faults of one partner—because a court could rule that the “unreasonable behaviour” offered as evidence was not unreasonable enough.

In 1990, the Law Commission, an independent oversight body, found that the rules surrounding divorce were confusing and the fault system caused “unnecessary hostility and bitterness.” Starting off divorce proceedings by listing all the things your partner has done wrong is unlikely to make them more inclined to cooperate in splitting assets or access to children. When I interviewed Brenda Hale, the former president of the U.K. Supreme Court, in 2018 she made her support for “no fault” divorce clear. The Law Commission’s findings had been ignored, she said, “on the basis that it was an attack on marriage and you needed to maintain the fault basis of divorce because otherwise divorce would be too easy, or not moral.”

That argument has faded away. Making divorce easier does not need to be presented as a defeat for social conservatives, for the simple reason that it isn’t one. Making divorce less painful and combative does not appear to discourage couples from staying the course. In Scotland, which has a different legal system from the rest of the United Kingdom, there is already an option for a simplified divorce after a year’s separation. It is widely used, yet the introduction of “quickie” divorces has not increased its divorce rate, which has been falling since the 1980s. (Scotland’s marriage rate is also declining, albeit more slowly.)

All of this reflects a frequently neglected truth: Although British social-justice activists often take their cues, and their slogans, from the United States, the political climate of the two countries is very different. Unlike Donald Trump, Johnson does not have a significant right-wing religious base that he needs to appease. Social liberalism is a bipartisan position in the British Parliament. The space exists for legislators to say that they believe marriage is a social good while also making divorce less punitive.

David Cameron made a conservative case for social liberalism to legalize gay marriage. His fellow right-wingers have done the same with divorce. Starting in 2021, many of the 100,000 couples who divorce each year will find the end of their marriage less antagonistic and adversarial; thousands of children will benefit, too.

Yet we seem, both in Britain and in the United States, to have lost the knack for talking about politics in terms of cooperation and compromise. The real lesson of no-fault divorce may be that we are unable to see politics as anything other than a culture war.