But the report seems to miss out one, we feel rather important factor, when assessing the meaning of this increase – are we really looking at just an increase in unreasonable behaviour and a shift in attitudes and priorities, or are lawyers, law courts and legal policy part of the cause of the rise in this trend?
In the UK certainly, most couples going through a divorce will be advised by lawyers to prepare what are called ‘anodyne petitions’ – petitions where the factual content in the statement section detailing the reasons for divorce are kept as ‘friendly’ and non-contentious as possible. Why do they do this? Because it’s supposed to keep the process simple, and because current court culture requires it. (Make of that last sentiment what you will – we rather suspect that the practice of keeping things anodyne was borne out of a need to reduce delay in the courts rather than spare couples the indignity of proving their pain, but perhaps we are being uncharitable).
Separating couples will also be advised to tick the ‘unreasonable behaviour’ box, rather than perhaps the adultery box or any other (alleged conduct permitting), so as to avoid a messier, more drawn-out and often increasingly traumatic process of proving and processing other types of behaviour listed in the current set of grounds for divorce – and because the courts in England and Wales are unlikely to punish spouses who have exhibited behaviour listed under those grounds. Judges simply don’t arbitrate fault any more, even though our system still plays host to the mechanism for it.
It’s the closest thing to No Fault Divorce, something US states are already picking up on, and which we feel may be having an impact on studies like these.
So, perhaps this shift away from adultery says less about the couples coming before the courts and more about the system, and whilst this study was based on US divorce petitions, we’re willing to bet that unreasonable behaviour as a ground for divorce is on the rise here, too.