Benjamin Stowe - A Socio-Legal Study of Divorce and Family Law in England and Wales

Name: Benjamin Stowe
Dissertation Supervisor: Norma Martin Clement
Student ID: 200245794
Word Count: 12,248
Title: A Socio-Legal Study of Divorce and Family Law in England and Wales:
Following on from the repeal of the Family Law Act 1996 where next for
Divorce Law Reform?
1
Contents Page
Table of Cases............................................................................................... 4
Table of Statutes ............................................................................................ 5
Abstract.......................................................................................................... 6
Introduction......................................................................................................8
Chapter 1: The Need for Reform, Social Perspectives and Liberalism ........ 11
The Current State of Affairs ......................................................................... 11
The Family Law Act 1996 ............................................................................ 12
The Role of Divorce Law.............................................................................. 16
Liberal Theory .............................................................................................. 17
Post Liberalism and Divorcing Responsibly ................................................. 20
A Critique of Post-Liberalism ....................................................................... 22
Communitarianism ....................................................................................... 23
Conclusion.....................................................................................................27
Chapter 2: An Accurate Theory of Marital Quality and Stability....................28

A Psycho-Social Study of Divorce ............................................................... 29
Functionalism and Divorce........................................................................... 30
Divorce: A process over time ....................................................................... 32
Psychological Theories of Marital Breakdown...............................................33
The Uncoupling Process .............................................................................. 33
The Stages of Relationship Breakdown ....................................................... 34
Divorce is a Last Resort................................................................................35
How Relationships Breakdown......................................................................36
Uncoupling is Avoidable................................................................................37
Criticisms of Uncoupling................................................................................37
Exchange Theory and Divorce ..................................................................... 38
Incorporating Theory into Family Law .......................................................... 39
Risk Factor Analysis .................................................................................... 40
Effective Legal Intervention...........................................................................43
Non-Legal Responses to Marital Breakdown ............................................... 44
Criticisms of Risk Factor Analysis ................................................................ 45
Conclusion.....................................................................................................46
Chapter 3: Cultural and Political Context of Divorce Reform........................48

Center for Social Justice (CSJ): Conservative Divorce Reform....................49
The FLA all over again..................................................................................50
Political Responses to Marital Breakdown....................................................52
Sending the Right Message ......................................................................... 53
The Privatization of Divorce and the Feminist Critique of Mediation ............ 54
Privatization of Divorce..................................................................................56
The ‘Darker Side’ of Divorce ........................................................................ 58
Conclusion: Striking a Balance .................................................................... 59
2
Chapter Four: Divorce Reform......................................................................61
Divorce Law Proposals ................................................................................ 61
Family Law Proposals .................................................................................. 63
Conclusion.....................................................................................................65
Bibliography ................................................................................................. 70
3
Table of Cases
Fitzpatrick v Sterling Housing Association [1998] 1 FLR 6............................31
Ghaidan v Godin-Mendoza [2004] 2 AC 557................................................40
Re L (A Child) (Contact: Domestic Violence) [2000] 2 FCR 404...................44
Smith v Smith [2009] EWCA Civ 1297..........................................................11
4
Table of Statutes
Children Act 1989..........................................................................................62
Divorce and Matrimonial Causes Act 1857...................................................13
Family Law (Scotland) Act 2006....................................................................61
Family Law Act 1996..................................................................8, 13,14,24,54
Matrimonial Causes Act 1973.......................................................................11
5
Abstract
In 2001, the Government announced the repeal of the FLA 1996. Many
commentators saw the Act as revolutionary. It removed matrimonial fault
from the divorce process. However in reality the Act still pursued the same
aim as all previous pieces of divorce legislation. It explicitly declared its
support for marriage, and imposed a framework of mechanisms designed to
keep couples together. In the face of individualism and society’s growing
reluctance to embrace life-long committed relationships the Government
used no-fault, under the FLA, as a subtle means of achieving the same ends,
namely controlling behaviour in order to save marriage. Following on from
the FLA failure, this dissertation examines the competing constructions of
what role divorce law should be seeking to achieve. The existing law under
the MCA reflects a Communitarian approach; its role is to give effect to the
shared moral values of the community, impose responsibilities and restrain
the pursuit of individual desires. By contrast, the failed FLA, according to
Reece, reveals a new Post-Liberal conception of divorce as an educative
process over time. If marriage cannot be saved the aim is for the couple to
divorce responsibly by considering the consequences of their actions, before
pursing their own self-interests. Neither approach is a suitable theoretical
framework for divorce reform as they both advocate in favour of periods of
marital entrenchment in order to ensure the ‘responsible decision’ is made
for the individual or the community. This dissertation forwards the view of
Libertarians who believe that within the private sphere of intimate
relationships the law should allow individuals to express their own identity
6
without external constraints. The law should not be used as a means of
controlling how people actually behave in their relationships. The power of
the law derives from how accurately it reflects public attitudes. Additionally,
and in view of the FLA failures and the recent Conservative proposals, this
dissertation also goes on to suggest that a dramatic shift in policy is needed
in order for workable divorce reform to be implemented. Divorce law is the
sole legal mechanism for ending dysfunctional relationships. This does not
mean marital quality and stability should not be supported. Other discourses
such as psychology, sociology and economics reveal how relationships
breakdown and thus may provide family law, as opposed to divorce reform,
with an opportunity to strengthen relationships based on this information.
However when a divorce petition is issued the function of the law should be
to dissolve the relationship with ease, speed and neutrality on the basis of
no-fault. It must respect the petitioner’s decision, and only seek to intervene
in the private realm of intimate relationships if the rights of other parties are
adversely affected.
7
Introduction
This dissertation proposes a radical shift in policy following the repeal of the
Family Law Act 1996 (FLA). It adopts the view that there is an important
connection between social context and legal doctrine. By considering how
individuals regulate their own family breakdown, rather than relying on
normative statements about the correct forms of behaviour, more suitable
divorce reforms emerge.1 This dissertation is a socio-legal study of divorce
and family law relying on other disciplines such as sociology, social policy,
economics, philosophy and psychology.
Firstly, this dissertation will examine the current law on divorce2 and the
unsuccessful implementation of the FLA. It will make reference to the
historical context of divorce reform and focus on how it has been used to
save marriage.3 This statement is true to the extent that advocates of divorce
reform declare its aim to be as such.4 I aim to demonstrate that divorce
reform should not advance a marriage saving agenda; rather it should
promote a Libertarian, as opposed to Communitarian or Post-Liberal ideal.
The debate will be based on the arguments proposed by Giddens5, Beck-
Gernsheim6, Etzioni7, Regan8 and Reece.9 It will conclude that the role of
1
A Diduck, Law’s Families (Lexis Nexis, London 2003)
2
Matrimonial Causes Act 1973
3
Lord Mishcon, Hansard HL vol 525 cols 812-54 (31 January 1991)
4
Family Law Act 1996 s 1(1)(a)
5
A Giddens, The Transformation of Intimacy (Polity Press, Cambridge 1992)
6
U Beck and E Beck-Gernsheim, Individualization (Sage, London 1995)
7
A. Etzioni, The Spirit of Community: Rights, Responsibilities and the Communitarian
Agenda (Fontana, London 1995)
8
M. C. Regan Jr., Family Law and the Pursuit of Intimacy (New York University Press, New
York and London 1993) 4.
8
divorce law is to embrace modern social norms by accepting relationship
breakdown as an inevitable part of life, giving effect to the free will of
divorcing spouses.
With the theoretical and conceptual foundations in place this dissertation will
then propose the support of marital quality and stability via wider family law,
rather than divorce legislation, using empirical research to demonstrate the
psychological complexities of relationship breakdown; prevention of family
breakdown is more rewarding for all parties involved. Recent psychological
perspectives10 and risk factor studies11 can be used as an alternative to the
wishful thinking of policy makers in order to provide an accurate theory of
marital quality and stability. Oral History Interviews have been conducted to
identify variables that predict marital breakdown. Thus it will be shown that
only by understanding how real relationships come apart can healthier
relationships be established.12
The final part of this dissertation will give an account of the problems
associated with a pure liberal no-fault approach. The Feminist criticisms of
mediation, voiced by Bottomley,13 O’Donovan14 and Scutt15 will be used to
9
H Reece, Divorcing Responsibly (Hart Publishing, Oxford 2003)
10
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York 1986)
11
W K Halford, ‘Best Practice in the Couple Relationship Education’ (2003) 29 Journal of
Martial and Family Therapy 385.
12
13
A Bottomley, ‘What is Happening to Family Law? A feminist critique of conciliation’ in C
Smart and J Brophy, Women-in-law: explorations in law, family, and sexuality (Routledge,
London 1985)
14
K O’Donovan, Sexual Divisions in Law (Weidenfeld and Nicolson, London 1985)
15
J A Scutt, ‘The Privatization of Justice: Power Differentials, Inequality, and the Palliative of
Counselling and Mediation’ (1988) 11 Women’s Studies Int. Forum 503
9
argue that divorce reform should promote a liberal individualist approach but
with appropriate safeguards in place via the court process.
Before concluding, this dissertation will outline why it purports to advance
potential divorce reforms. Drawing on the arguments of all previous chapters,
I will conclude that the sole ground for divorce will be by the irretrievable
breakdown of the marriage proved by no-fault facts of mutual consent and
separation. I will then argue that the need to liberalise the law will be
balanced with the need to protect the most vulnerable parties, and family
law, as opposed to divorce law, should be used to incorporate an accurate
theory of marital quality and stability.
10
Chapter 1: The Need for Reform, Social Perspectives and Liberalism
The Current State of Affairs
Wilson LJ stated the current position as follows:
‘Our society in England and Wales now urgently demands a second attempt
by Parliament, better than the ill-fated Part II of the Act of 1996, to reform the
five ancient bases of divorce’.16
This demonstrates that now more than ever there is a strongly perceived
need for divorce reform. At present, divorce is granted on the sole ground of
irretrievable breakdown of the marriage17 proved by one of five facts: First,
adultery, and the petitioner finds it intolerable to continue to live with the
respondent.18 Second, the respondent’s behaviour is so unreasonable that
the petitioner cannot reasonably be expected to live with the respondent.19
Third, the parties have been separated for two years and both consent for a
divorce.20 Fourth, the respondent has deserted the petitioner for two years.21
Fifth, the parties have been separated for five years.22
The only conceivable way for the parties to get a quick divorce, without a
prolonged period of marital entrenchment, is through alleging misconduct in
the form of adultery or unreasonable behaviour. 75% of all divorces are
16
Smith v Smith [2009] EWCA Civ 1297
17
Matrimonial Causes Act 1973 s 1(1)
18
Matrimonial Causes Act 1973 s 1(2)(a)
19
Matrimonial Causes Act 1973 s 1(2)(b)
20
Matrimonial Causes Act 1973 s 1(2)(c)
21
Matrimonial Causes Act 1973 s 1(2)(d)
22
Matrimonial Causes Act 1973 s 1(2)(e)
11
petitioned on fault-based grounds.23 This section will discuss the problems
with the FLA in attempting to reform the ‘ancient bases of divorce’ and what
suitable divorce reform should be. By looking at the role of divorce law it will
lay down the theoretical and conceptual foundations for an understanding of
divorce reform. It will be argued that divorce law must facilitate the couple’s
wish, to dissolve the marital union, with ease and neutrality. Surely if a
couple are able to enter into a marriage in accordance with a clearly defined,
simple set of rules, then the current law on divorce should regulate the end of
the marriage in the same way by ‘trying to take the bitterness out of
matrimonial disputes’.24
The Family Law Act 1996
The FLA was intended to be the first piece of no-fault legislation based on
the idea that people should be educated about the consequences of divorce,
in particular the financial problems and difficulties with child-care
arrangements.25 This dissertation supports such a modern, progressive and
forward-looking premise. However, the means used in the Act to achieve
these objectives are inappropriate.
The FLA introduced information meetings during a compulsory 3-month
period after which the couple were free to decide if the marriage had broken
23
Secretary of State Michael Howard, Lord Chancellor’s Department, ‘Looking to the Future.
Mediation and the Ground for Divorce’ (Cm 2799, 1995) Para 2.4.
24
Lord Mishcon, Hansard HL vol 525 cols 812-54 (31 January 1991) [815]
25
Mrs. Virginia Bottomley, Hansard HC volume 347 col 948 (4 April 2000)
12
down.26 Following this, a 9-month period of reflection and consideration was
to take place at the end of which the marriage was deemed to have
irretrievably broken down.27 The process was intended to promote co-
operation between spouses as opposed to perceived anger and bitterness
caused by the fault-based Matrimonial Causes Act (MCA). The FLA was
described as a ‘revolutionary mechanism’ for obtaining a divorce.28 The FLA
was, unquestionably revolutionary as it removed fault from the divorce
process. Since 1857 divorce was categorised by attaching blame and moral
stigma to those who had committed grave offences against the sanctity of
marriage.29 Throughout the 1960s judges still retained the power to grant or
refuse divorces on the basis of their moral worth. The need to attribute fault
continued up to the introduction of the FLA. However despite the Act starting
off as morally neutral, simple and clear by granting divorce on the sole basis
of irretrievable breakdown, through Parliament it gained strong moral
overtones in the form of marriage saving.30 Those such as Baroness Young
sought to promote the importance of marriage as being at the centre of
stable family life based around the ‘imposition of external rules and State
sanctioned forms of punishment’.31 She attacked the FLA arguing that the
‘State is actively discouraging any concept of lifelong commitment in
marriage’.32 Consequently the FLA developed a marriage saving agenda in
order to control the behaviour of the couple to stay together with divorce as a
26
Family Law Act 1996 s 6.
27
Family Law Act 1996 s 7.
28
E Hasson, ‘Wedded to ‘fault’: the legal regulation of divorce and relationship breakdown’
(2006) 26 Legal Studies 267, 268.
29
Divorce and Matrimonial Causes Act 1857
30
Hansard HL vol 567 col 733 (30 November 1995)
31
Baroness Young, Hansard HL vol 567 col 733 (30 November 1995)
32
Baroness Young, Hansard HL vol 567 col 733 (30 November 1995)
13
last result. This message was clear throughout the Act; marriage was to be
supported and where the marriage had broken down the couple was
encouraged to take all practical steps to save it.33 Therefore the FLA may
have been revolutionary in removing matrimonial fault from the divorce
process but it still promoted the same ideology throughout the history of
divorce law reform; namely marriages ‘which have a chance of survival’
should be supported.34
The Ill-fated FLA
The failure of the FLA was said to be down to its impracticality. Couples were
forced into programmes designed to save marriages and reduce conflict.
More specifically it was said that the information meetings came ‘too late in
the day’ where ‘over half had already separated by the time they had
attended the meeting’.35 The Lord Chancellors department ‘expressed
disappointment in the outcomes of the findings’.36 Some Commentators,
notably Hasson, have argued that the failure of the FLA reveals that the role
of divorce law is not that of a ‘social engineer’.37 In other words, the law is
not in a position to regulate behaviour within the private sphere of intimate
relationships in order to create the world, ‘as they would like it to be’, rather
33
Family Law Act 1996, s 1
34
Law Commission, ‘Reform of the Grounds of Divorce-The Field of Choice’ (Law Com No 6
Cmnd 3123, 1966) 53
35
E Hasson, ‘Setting a standard or reflecting reality? The ‘role’ of divorce law and the case
of the Family Law Act’ (2003) 17 Int. J.L.P.F 338, 360
36
Hansard House of Commons vol 347 col 950 (4 April 2000)
37
14
than the ‘world as it is’.38 Arguably this is a plausible conclusion. Divorce
must be seen as a fact of life. It should neither be encouraged nor
discouraged. The primary role of divorce law is to ‘unambiguously embrace
the realities of modern social life’.39 The FLA ignored this by using the slogan
of marriage saving to entrench couples in a process of marital reflection and
consideration telling the couple how to behave, when in fact all they wanted
was to end the marriage as quickly as possible.
Additionally the FLA can also be criticised on the ground that it gives the
impression of empowerment to spouses, deciding for themselves whether
the marriage has irretrievably broken down, when in reality the State controls
how this power is exercised.40 In accordance with the views of Eekelaar, the
FLA may have made it easier for couples to leave the marriage through the
removal of fault, but the way this process occurred was scrutinized and
controlled by the State. Thus the FLA not only sought to modify behaviour in
order for spouses to be more responsible, but it also sought to control
behaviour through the illusion of empowerment.41 I will make reference to
how divorce law is used by the Government to send the right messages in
order to subtly influence how couples behave.
38
39
40
J Eekelaar, ‘The End of an Era” in S Katz, J Eekelaar, and M Maclean (eds), Cross-
currents: family law and policy in the United States and England (OUP, Oxford 2000)
41
currents: family law and policy in the United States and England (OUP, Oxford 2000)
15
Following on from the failure of the FLA, consideration will now be given to
the influence of social theory on divorce in order to determine what role
divorce law should be seeking to achieve.
The Role of Divorce Law
Social theory has become increasingly important when looking at suitable
divorce law reform.42 Modernization and individualism have had a clear effect
on intimate relationships and the stability of marriages. Theoretically, two
schools of thought have emerged. Firstly, Libertarians argue that within a
modern society divorce reform should promote the free will of divorcing
spouses.43 Secondly, there are those who see this increase in individualism
as a threat, and as a result advance a Communitarian message in claiming
that a community’s moral voice should always trump the individual’s desire
when framing divorce reform.44 This dissertation will address both sides of
the debate. However, it will be argued that divorce law should only seek to
pursue a liberal ideology, not in the form of the post-liberal FLA, but simply
granting a divorce on the basis of the couple’s internal desire to end the
marriage. Divorce law should be morally neutral; it should not seek to
promote the moral values of the community but rather facilitate the
expression of the spouse’s free will.
42
43
44
York and London 1993)
16
Liberal Theory
Beck-Gernsheim45 and Giddens46 advocate in favour of a liberal ideology on
the basis that our society is shifting more and more towards individualism
and globalization. For liberals, humans are able to calculate the best means
to achieve a desired end or having the capacity to realize rational principals.
It is the individuals’ capacity for reason that facilitates the exercise of
autonomy and ability to make marital choices. This rational capacity gives
way to the idea of innate rights. Providing that the rights of others are
respected, liberals purport the view that individuals have the right to seek
their own fulfillment.47 Unconstrained free will should be reflected in divorce
law reform.
For Giddens, the increased awareness and prominence of the self and
individualism have had a profound effect on intimate relationships. According
to Giddens contemporary marriage is far different from earlier marriages that
were based on a more ‘institutional grounded form’.48 The traditional
marriage was entered into on the basis of romantic love whereas the pure
relationship, which has emerged in our modern society, survives only
45
U Beck and E Beck-Gernsheim, The Normal Chaos of Love (Polity Press, Cambridge
1995)
46
47
D Bromwich and G Kateb (eds), On Liberty: John Stuart Mill (Yale University Press, New
Haven: London 2003)
48
A James and M Richards ‘Sociological perspectives, family policy, family law and children:
Adult thinking and sociological tinkering’ (1999) 21 JSWFL 23, 24
17
because it delivers enough satisfaction to each individual.49 The shift from
romantic love towards confluent love can be seen as the main reason why
more marriages breakdown.50 The idea of the self in particular impacts on
our decisions within intimate relationships. The self is a relative concept, in
that it is dependant on its surrounding circumstances always subject to
change. Therefore individuals within a modern society constantly seek to
improve, redefine or remake themselves. Marriages as a result will suffer.
Humans, in particular women, are ‘agents of change’. ‘Men have largely
remained stuck within a 19th Century framework of masculinity whilst
womenLhave excelled in the modern realm of intimacy’.51 The economic
independency of women, the Welfare State and privatisation polices all
emphasise individualism on a private level.52
Regrettably, within our society, it is clear that whilst these changes are taking
place the ‘family must stand still’.53 All divorce law reform from the Royal
Commission paper in 195554 to the FLA 1996 has been used to re-stabilize
the family through saving marriages in the face of individualism. Women are
at the forefront of change because they see the social changes in terms of
employment, economic status, birth control and political power and yet in
relation to marriage and divorce things have remained the same. Arguably
49
A Giddens, The Transformation of Intimacy (Polity Press, Cambridge 1992) 58
50
C Smart, ‘Wishful Thinking and Harmful Tinkering? Sociological Reflections on Family
Policy’ (1997) 26 Jnl Soc. Pol 301, 306
51
52
53
54
Secretary of State Gwilym Lloyd George, Lord Chancellor’s Department, ‘Royal
Commission on Marriage and Divorce’ (Cmd 9678, 1956)
18
divorce law should seek to adopt a liberal ideology by ignoring the view that
family life should remain static and embrace the realties of modern social life
by allowing spouses to exercise their autonomous nature and make free
choices when seeking a divorce.
Beck-Gernsheim provides further evidence of the need for a liberal approach
to family matters suggesting that there no longer exists a pre-determined set
of rules based on the external authority of the Church or the State.55 We are
no longer controlled by shared community values; instead we have our own
‘biography’.56 Therefore individuals within a post-modern age are free to
create their own identities. Any law that imposes moral judgements ‘may be
at best inappropriate and at worst morally destructive’.57
Both Giddens and Beck-Gernsheim emphasise the ‘rapidity of change’ in
recent times towards individualism.58 Divorce law reform must follow suit and
move away from marriage saving and accept the changes that are taking
place within our society. In accordance with the views of Smart, marriage is
no longer an institution but a relationship.59 This relationship should be able
to break down with minimum interference so as to give effect to the
mentalities of both parties.
55
A Diduck, Laws Families (Lexis Nexis, London 2003) 7.
56
U Beck and E Beck-Gernsheim, The Normal Chaos of Love (Polity Press, Cambridge
1995) 5
57
A Diduck, Laws Families (Lexis Nexis, London 2003) 10.
58
A James and M Richards ‘Sociological perspectives, family policy, family law and children:
Adult thinking and sociological tinkering’ (1999) 21 JSWFL 23, 24
59
Policy’ (1997) 26 Jnl Soc. Pol 301
19
Chapter Three will reveal how political discourse has created an image of
modern society in decline and the rise of individualism as a threat to our
moral fabric. This is ‘wishful thinking’ in hoping such views will encourage a
return to traditional family values.60 If we accept the theories of Beck-
Gernsheim and Giddens as the foundation for any divorce law reform ‘wishful
thinking’ can be replaced with a liberal ideology that allows the autonomous
free-willed individual to make their own marital choices.
Post Liberalism and Divorcing Responsibly
Reece uses the theories of Giddens and Beck-Gernsheim to advocate in
favour of post-liberal divorce reforms that look at the concept of ‘divorcing
responsibly’; those who participate in the divorce process must be fully
aware of the process itself.61 In other words couples must appreciate and
contemplate the decision to divorce, anticipate the consequences and be
aware that ending a marriage may be more fulfilling than continuing with it.
For Reece the FLA can be seen as ‘the most perfect example of post-liberal
legislation to date’,62 embracing the post-liberal ideology in ensuring that
those who are responsible are judged not by their actions but by the level of
thought about the consequences of their actions. Therefore, the role of
divorce is not to attribute blame to the guilty spouse but to ensure that both
parties have fully contemplated the decision to divorce. For Reece,
individuals within intimate relationships are agents embarking on a
60
Policy’ (1997) Jnl Soc. Pol 26 301, 319.
61
62
H Reece, Divorcing Responsibly (Hart Publishing, Oxford 2003) 7.
20
continuing path of reflection and self-discovery. According to Reece the FLA
reflects this by introducing information meetings alongside periods of
reflection and consideration in order to give the individual time to think about
his/her decision. Divorce will only be allowed if, following on from a period of
internal reflection, the decision to divorce will have a positive impact on the
personal growth of the individual.63 Reece draws on the work of Giddens by
arguing that the self is a fluid concept that can change depending on its
circumstances. As a result, the person who enters into the marriage may not
be the same person who petitions for divorce years later. The FLA supports
the transition of spouses who are continually on the path of self-discovery by
allowing divorce but only after a prolonged period of reflection. According to
Reece this is the essence of divorcing responsibly. Those who have taken
the time to reflect on their decisions, but conclude that the realisation of their
true authentic self can only be achieved through divorce.
For Reece, the liberal conception of allowing divorce en masse in order to
facilitate the expression of a spouse’s free will is unsustainable. When a
person seeks to exercise their autonomous nature there exists a ‘momentary
self’ and ‘authentic self’.64 Only through information meetings and periods of
reflection and consideration can we understand what the authentic self
desires. Allowing for quick and easy divorces will only reflect the momentary
self, which is not a true or genuine expression. Moreover, breakdown of the
marriage involves ‘the mammoth task of rebuilding the world and the self’.65
63
64
65
21
Only a post-liberal process of divorce reflects this, as there are limits on the
divorce process allowing both parties to adjust to the changes that have
taken place. Few would disagree with this. Allowing divorce without proper
contemplation of the act itself and its consequences cannot be right.
However, a period of entrenchment after the petition for divorce has occurred
is ‘too late in the day’.66 It will be argued in Chapter Two that although Reece
is correct in her distinction between the momentary and authentic self, the
transition between the two does not occur after divorce has been petitioned
but during the process of ‘uncoupling’.67
A Critique of Post-Liberalism
Reece believes that the repeal of the FLA was due to inherent tensions in
post-liberal theory, namely an illusory concept of autonomy and a concept of
responsibility that ‘extends infinitely and is impossible to define’68 due to the
constant changes that take place on our path towards the realisation of the
true self.
One has to question Reece’s conclusion that the failure of the FLA was down
to the inherent tensions within post-liberal theory. It begs the question; if
post-liberal theory is inherently flawed then how can it ever form a basis for
66
of the Family Law Act’ (2003) Int. J.L.P.F 17 338, 360.
67
68
H Reece, ‘Divorcing Responsibly’ (2000) 8 Feminist Legal Studies 65, 88.
22
divorce reform?69 Hasson and Probert have refuted this conclusion arguing
that the main reason for the non-implementation of the FLA is because the
law could not successfully change people’s behaviour.70 The post-liberal FLA
sought to control how people reflected and define when their marriage had
irretrievably broken down. Divorcing parties were told to ‘think hard’71, ‘think
more thoroughly’72, ‘stop and think’73 and ‘think again right up to the moment
divorce is granted’74. Arguably, this level of control cannot be reconciled with
the post-liberal concept of self-discovery and reflection but a form of marital
entrenchment that prevents couples from moving on. Commentators such as
Eekelaar claim that the slogan of divorcing responsibly is not indicative of a
post-liberal ideology but is nothing more than a ‘Communitarian reaction’75
allowing for intensive State control to produce socially desirable outcomes.
Communitarianism
Communitarians have argued that in order to discover our individual identity
we need to exist within a communal context as opposed to a liberal state of
free will and self-discovery. In Etzioni’s ‘The Spirit of the Community’76, he
argues that family law should seek to pursue a Communitarian goal by
69
R Probert, ‘Book Review: Helen Reece, Divorcing Responsibly’ (2005) 19 International
Journal of Law, Policy and the Family 126, 129.
70
R Probert, ‘Book Review: Helen Reece, Divorcing Responsibly’ (2005) 19 International
Journal of Law, Policy and the Family 126, 129.
71
Viscount Cranbourne, Hansard HL vol 569 col 1774 (5 July 1996)
72
Jean Corston, Hansard HC vol 279 col 447 (17 June 1996)
73
Lord Bishop of Oxford, Hansard HL vol 569 col 1653 (29 February 1996)
74
Baroness Young, Hansard HL vol 569 col 1704 (29 January 1996)
75
currents: family law and policy in the United States and England (OUP, Oxford 2000) 654.
76
A. Etzioni, The Spirit of Community: Rights, Responsibilities and the Communitarian
Agenda (Fontana, London 1995).
23
shifting the emphasis away from individualism towards the well being of
others. In relation to divorce law Etzioni advocates ‘waiting periods prior to
marriage’ and ‘delays on divorce’ to enable the couple to reflect on their
decisions and the consequences of their actions on all parties involved.77
Although similar to Reece’s Post-Liberalism, Etzioni advocates in favour of
delays to divorce in order to ensure that the divorcing couple reflects on the
well being of the community, basing their decision on what is best for others
rather than what is best for them and thus still purports the value of the
community over the expression of the self. This approach has had strong
supporters in the Parliamentary debates leading up to the introduction of the
FLA reforms.78 Lord Mishcon argued, ‘Lthe wholesale breakdown of
marriage in our country is a serious threat to the fabric of our societyLandL
is a grave threat to the mental, physical, educational and indeed financial
future of our children’.79 The provisions within the FLA that sought to protect
marriage and guard against divorce were justified on Communitarian
grounds, namely divorce unsettles children, it represents a risk to their
welfare80 and the cost of private actions is extremely strenuous on the public
purse. For partners who wish to divorce, the law promotes responsibilities to
their own family, in particular children, and the wider community, to save the
marriage rather than pursue their own selfish desires.
Communitarianism, like Post-Liberalism, is subject to the same criticism.
Delays in order to save marriages are nothing more than a form of marital
77
J Eekelaar, ‘Family Law: The Communitarian’ (2001) 21 OJLS 181.
78
Hansard HL vol 525 cols 812-54 (31 January 1991)
79
Lord Mishcon, Hansard HL vol 525 cols 813 (31 January 1991)
80
Family Law Act 1996, s 8(9)
24
entrenchment that has already been proved unsuccessful through the failed
information meeting pilots. In believing that such forms of entrenchment will
save marriages and as a result people will resort back to traditional family
models that benefit the community as a whole, Etzioni’s view, like that of the
Government, is ‘wishful thinking’. Familial and societal responsibilities should
not dominate to such an extent that they are of paramount consideration
during the process of divorce. The process should dissolve a dysfunctional
relationship, responding to the needs of a divorcing couple rather than
promoting social goals of saving marriage, reducing the costs of justice and
safeguarding children from the ills of single parenthood.
Regan also starts with a central Communitarian message: In order to
discover our individual identity we need to exist within a communal context.81
Regan focuses on the internal aspect of family law that looks to protect
intimate relationships by subordinating individual desires and placing special
value on ‘mutual trust, confidence and commitment’ of both parties.82 For
Regan the law should account for people’s contributions to one another in
the relationship. The only way for this to materialize is if fault becomes an
integral part of any divorce law reform.83 According to Regan, fault needs to
be present in divorce law because it can be used as a means of deterrence.
It sends a message to married or soon to be married couples so to correct
marital behaviour and the consequences of breaking those commitments.
81
York and London 1993) 4.
82
J Eekelaar, ‘Family Law: The Communitarian’ (2001) 21 OJLS 181, 185.
83
J Eekelaar, ‘Family Law: The Communitarian’ (2001) 21 OJLS 181, 184.
25
Arguably, fault based divorce laws produce bitterness by focusing the
spouses mind on the past, exacerbating anger and frustration. There is little
value in forcing a couple to stay married; keeping empty shell marriages alive
will be detrimental to both spouses and any children.84 In this authors view
Regan’s fault based argument represents nothing more than a moral panic.85
In accordance with the views of Pearson we live in a world of ‘moral
dodoism’ whereby our society is determined by our inability to adapt to the
changing environment and social alterations.85 The Communitarians and
fault lawyers, without any empirical evidence, view the increase in
individualism and rising divorce rates as detrimental to our moral fabric and
as a result, promote traditional forms of divorce law based around moral
fault, delays and the promotion of marriage above all else. A shifting moral
focus does not mean an abandonment of morals altogether.86 In fact, within
a modern progressive society in which there are a lack of straightforward
rules to follow, people become more moral than they were before, because
there is an ‘authorship and actorship agency’ involved in the moral decisions
we make.87 The way forward is to embrace the changes that are taking place
in society.
84
A Bainham, ‘Men and Women Behaving Badly: Is Fault Dead in English Family Law?’
(2001) 22 OJLS 219
85
S Cohen, Folk Devils and Moral Panics (Routledge, London 2002)
85
G Pearson, Hooligan a History of Respectable Fears (Macmillan, London 1986) 211
86
C Smart and B Neale ‘Good enough morality? Divorce and postmodernity’ (1997) 17
Critical Social Policy 3, 6.
87
Z Bauman, Postmodern Ethics (Blackwell, Oxford UK and Cambridge USA 1993)
26
Conclusion
Both Post-Liberalism and Communitarianism are unsuitable bases for
divorce reform. Although the theories exist at opposite ends of the divorce
spectrum they both advocate periods of marital entrenchment in order to
ensure the ‘responsible decision’ is made for the individual or the community.
Neither account for what the spouses want and need from the divorce
process, instead advancing a marriage saving premise to reform people’s
individualist ways and save societies moral fabric. In accordance with the
views of Dewar, although chaos gives the impression of social disorder and
the disintegration of the moral fabric, this is normal within family law
discourse.88 Family law is characterized not only by rules, procedures and
precedents but also emotions of love, hate, anger, intimacy, passion and
betrayal whether the legislators like it or not.89 There are no a priori principles
that demand divorce reform to promote responsibility or the needs of the
community. Divorce reform must be flexible in order to respond to the lived
realties of divorcing spouses. Therefore the role of divorce law is to facilitate
the expression of the spouse’s free will. Divorce is a fact of life, and the law
must embrace this by ending a dysfunctional relationship on the basis of
liberal individualist laws without unnecessary restrictions.
88
J Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 MLR 467, 468.
89
27
Chapter 2: An Accurate Theory of Marital Quality and Stability
No new legislation on divorce, in this country, has been successfully
implemented since 1973, even though there has been a mass of
Parliamentary debates on the matter.90 All prior legislation has focused its
attention on the proof of fault as a ground or fact for divorce whilst failing to
provide a suitable path that adequately reflects what the divorcing couple
want from the process. Fault breeds ‘unnecessary hostility and bitterness’,91
whereas no-fault under the FLA entrenches the couple in forced periods of
reflection and consideration supplemented by information meetings. Both tell
the couple how to behave in order to save the marriage, but neither actually
provides for the spouses needs, namely a quick, straightforward and cost
effective process that ends the dysfunctional relationship.
Divorce should be granted on the sole basis of irretrievable breakdown
proved only by the spouses desire to divorce. However the need to support
relationship quality and stability can still form part of the wider framework of
family law. Research indicates that individuals from failed marriages
experience greater rates of psychopathology, physical illness, suicide and
90
Hansard HL vol 525 cols 812-54 (31 January 1991); Baroness Young, Hansard HL vol
567 col 733 (30 November 1995), vol 568 cols 325 and 351 (11 January 1996), vol 569 col
862 (22nd January 1996), Volume 569 col 1640 (29 February 1996); Bishop of Prelate,
Hansard HL vol 569 col 1638 (29 February 1996); Lord Stoddart, Hansard HL vol 569 cols
1641 and 1651 (29 February 1996); Lord Ashbourne, Hansard HL vol 569 col 1642 (29
February 1996), Volume 567 col 772 (30 November 1995); Lord Clifford, Hansard HL vol
569 col 1662 (29 February 1996); David Alton, Hansard HC vol 279 col 562 (17 June 1996);
Angela Rumbold, Hansard HC vol 276 cols 451 and 469 (24 April 1996); John Patten,
Hansard HC vol 279 col 575 (17 June 1996), vol 274 col 759; Lord Habgood, Hansard HL
volume 569 col 1645 (29th February 1996); Mrs. Virginia Bottomley, Hansard HC vol 347 col
953 (4 April 2000)
91
Lord Mishcon, Hansard HL vol 525 cols 814 (31 January 1991)
28
violence.92 Children are also adversely affected by marital breakdown.93
Helping marriages survive has important implications for society as a whole
and the well being of all individuals within the family. This dissertation
proposes that family law and other discourses can be used to develop an
accurate theory of marital quality and stability, providing for healthier family
relationships without restricting the freedom of divorcing spouses.
A Psycho-Social Study of Divorce
Sclater is unique in ‘challenging the conventional discourse’94 about family
law in England and how policy makers have failed to consider the use of
human psychology. The FLA, in formulating a law based around co-
operation, reflection and consideration assumes that couples will act in a
civilised manner during the entire process; however this neglects the fact that
passion, emotion and conflict are necessary aspects of a divorce. Sclater
rightly states that divorce is the only mechanism within the law for dealing
with the breakdown of intimate relationships95 and so this raises the question
as to how the FLA can ever be considered effective if it removes the
necessary and sufficient conditions of emotion and intimacy from the process
itself.96 Harmony is not a concept that sits well during the divorce process.
The law should respond to what divorcing spouses go through during the
92
S Carrere, K T Buehlman and J M Gottman, ‘Predicting Marital Stability and Divorce in
Newlywed couples’ (2000) 14 Journal of Family Psychology 42.
93
J Gruber, ‘Is Making Divorce Easier Bad for Children? The Long-Run Implications of
Unilateral Divorce’ (2004) 22 Journal of Labour Economics 799
94
R Clark, ‘Reviewed works: Undercurrents of Divorce by Shelley Day Sclater; Christine
Piper’ (2000) 62 Journal of Marriage and the Family 592.
95
S Sclater, Divorce: A Psychosocial Study (Ashgate, Aldershot 1999) 145.
96
S Sclater, Divorce: A Psychosocial Study (Ashgate, Aldershot 1999) 145.
29
process, rather than force them to achieve what policy makers perceive as
the good divorce. The principles surrounding the FLA in attempting to create
a harmonious divorce process simply ignored the fact of marital
breakdown.97 Although Sclater’s work is primarily associated with
condemning divorce law for ignoring the importance of psychology, when
framing divorce reform it fails to advance a suitable alternative.98 Sclater
makes it clear that the law needs to recognize the variations of divorcing
spouse’s experiences and as a result introduce law that is flexible enough to
respond to individual psychological complexities.99 However, despite this it
fails to ‘point to mechanisms that would increase such attention’.100 This
dissertation supports Sclater’s work by using the social sciences to
demonstrate how ineffective legislation has been to date. But will seek to
expand on her work in order to arrive at suitable mechanisms that allow
psychology to be incorporated into any future reforms.
Functionalism and Divorce
To successfully advance a liberal ideology based on the psychology of
divorcing spouses and the sociology of intimate relationships there should be
a jurisprudential platform from which such statements can be justified.
97
J Brown and S C Sclater, ‘Divorce: A Psychodynamic Perspective’ in S C Sclater and C
Piper, Undercurrents of Divorce (Ashgate, Dartmouth 1999) 158.
98
Piper’ (2000) 62 Journal of Marriage and the Family 592
99
S Sclater, Divorce: A Psychosocial Study (Ashgate, Aldershot 1999)
100
Piper’ (2000) 62 Journal of Marriage and the Family 592
30
Divorce reform should be based on a functionalist approach to family law. In
other words the law must not become obsessed with dogmatic theory,
instead it should be based on ‘Law in Action’ derived from the empirical
observation of what couples do rather than what they are or what form they
take.101 Divorce law found in statute and case law based on the archaic
models of attributing fault and marriage saving has precious little influence
on the way divorcing spouses actually wish to arrange their affairs. Eugene
Ehrlich advanced the idea of ‘living law’.102 He believed that individual
citizens follow living law as opposed to ‘Law in Books’. He claims there is
little use in reading rules out of books, when social life is based on other
rules. Social theories mentioned in Chapter One reveal how individual
citizens follow different rules based on individualism, freedom of expression
and marital satisfaction. Therefore the law must become less concerned
with the formal nature of the relationship and more concerned with how the
relationship functions in terms of day-to-day practicalities. Ward LJ states;
‘The functions may be procreative, sexual, sociable, economic, and
emotional. The list is not exhaustive. Not all families function in the same
way’.103 Thus the focus must be on what couples do rather than what policy
makers believe are the socially acceptable family forms. The Lord
Chancellor, Lord Irvine of Lairg, responding to the failed information meeting
pilots, argued that family law is too important for the Government to want to
rush ahead with ‘implementing legislation on a doctrinaire or speculative
basis, without the best empirical information available, coupled with informed
101
R Wacks, Understanding Jurisprudence (OUP, Oxford 2005) 196
102
D Nelken, ‘Law in Action or Living Law? Back to the Beginning in Sociology of Law’
(1984) 4 Legal Studies 157.
103
Fitzpatrick v Sterling Housing Association [1998] 1 FLR 6 at 41
31
professional advice’.104 This dissertation proposes that the social sciences
can be used not only to demonstrate how out of touch divorce law reform has
been to date, but also to provide an accurate and effective family law policy.
Divorce: A process over time
Divorce is a complex psychological and social process rather than a single
event based on attributing fault. Although under the FLA divorce was seen as
a process over time ‘rather than a concrete event’105 the pilot projects
allowed couples to go through the psychological stages of breakdown after
the petition was issued. This constitutes a complete misunderstanding of the
psychology behind intimate relationships. After the decision to divorce has
been made the couple are too far down the psychological road to divorce for
the meeting to have any significant affect on their decision. Although divorce
involves transitions, these transitions take place at the start of the
relationship and continue until the petition has been issued. The act of
issuing a petition for divorce is a clear statement of belief that the marriage
has irretrievably broken down. Both parties will have altered their internal and
external lives to such an extent that they are distinct and separate from one
another. Any legislation that fails to recognize this, and seeks to intervene at
certain stages after the petition has been issued will be ineffective.106
104
Mrs. Virginia Bottomley, Hansard HC vol 347 col 953 (4 April 2000)
105
Hansard HC vol 347 col 948 (4 April 2000)
106
J Eekelaar, ‘Family Law: keeping us “on message”’ (1999) 11 Child and Family Law
Quarterly 387.
32
Psychological Theories on Marital Breakdown
A comprehensive study of the psychological literature on marriage and
divorce is unnecessary due to the fact that some theories have lost
prominence as a result of recent social developments. The increase in
individualism and the pluralisation of society has shifted the emphasis away
from the Family Systems Theory107 and Attachment Theory108 on divorce that
dominated the 1960’s and 70’s towards Developmental and Social Exchange
theories. Psychology is now read in conjunction with an economic analysis of
marriage and divorce rather than merely focusing on family problems and
poor attachment styles as predicators.
The Uncoupling Process
Developmental Theorists state that divorce involves a complex psychological
transition from one stage to another defined by the actions of an initiator and
non-initiator.109 Vaughan’s analysis of ‘uncoupling’110 represents a
developmental view as the divorce process is seen to take an orderly,
107
A Clarke-Stewart and C Brentano, Divorce Causes and Consequences (Yale University
Press, New Haven and London 2006) 24
108
C P Ceglian and S Gardiner, ‘Attachment style: a risk for multiple marriages?’ (1999) 31
Journal of Divorce and Remarriage 125; J Davila and T Bradbury ‘Attachment Insecurity and
the Distinction Between Unhappy Spouses Who Do and Do Not Divorce’ (2001) 15 JFP 371
R Finzi, O Cohen and A Ram, ‘Attachment and Divorce’ (2000) 11 Journal of Family and
Psychotherapy’ 1.
109
Press, New Haven and London 2006) 21; D Vaughan, Uncoupling: How and Why
Relationships Come Apart (OUP, New York) 198; J Hopper, ‘The symbolic origins of conflict
in divorce’ (2001) 63 Journal of Marriage and the Family 430.
110
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York
1986)
33
detailed and definable path. Based on oral interviews of people who have
suffered from relationship breakdown she develops the process of
uncoupling.
The Stages of Relationship Breakdown
At the outset the initiator forms a secret disliking towards their partner, slowly
making his/her feelings more direct and public, seeking to hide secrets about
the problems within their relationship, taking out his/her feelings on the
partner in discreet and indirect ways. The initiator then seeks external
validation of his/her negative sentiments towards the partner, through a
friend, colleague or family member. Once the initiator has moved away from
his/her internal battle as to whether the relationship can survive, and has
sought public support and a more attractive lifestyle, direct confrontation with
the partner emerges. As a result of this direct and shocking confrontation the
partner enters into a negotiation trying desperately to save the marriage.
However, after the parties have debated the successes and failures of their
relationship they both privately and publicly accept relationship breakdown is
inevitable. In the end both parties establish new and independent identities
from one another separating what was once a joint enterprise.
Commentators, most notably Wiseman111 and Bohanonn112 have categorized
these individual experiences into definable stages; denial, loss and
depression, anger and ambivalence, re-orientation of life and identity and
111
R S Wiseman, ‘Crisis Theory and the Process of Divorce’ (1975) Social Casework 56
205.
112
P Bohannon, ‘The Six Stations of Divorce in P Bohannon’ (eds), Divorce and after: An
analysis of the emotional and social problems of divorce (Doubleday, New York 1970)
34
acceptance and integration. These stages all occur before a petition has
been issued. The petition represents the end of the relationship and the end
of any attempts to save it. This process can be used to reveal how
inadequate divorce legislation has been to date.
Divorce is a Last Resort
Divorce is not a spontaneous reaction driven by individualist desires, but a
lengthy process that can be understood in terms of transitions.113 For most,
divorce is seen as a last resort. There exist various external and internal
constraints that keep the couple together as long as possible. Initiators have
a sense of commitment; they feel bound by a marital bond and a belief that
things are fixable. Further more, the initiator feels constrained by external
social barriers towards separation such as the welfare of the children and the
judgement of family members. All constraints whether personal, religious,
social or economic constitute roadblocks to divorce.114 The initiator in
particular experiences an internal battle as to whether or not to give up on
the relationship. In the end, however, the individuals will experience an
emotional shift and both parties redefine themselves and the world around
them as separate entities. As mentioned above, both the MCA and FLA fail
to account for these transitions, assuming that couples begin the process of
relationship breakdown after a divorce petition has been issued. Lengthy
separation periods in the former and information meetings in the latter
113
1986)
114
1986) 6.
35
constitute a complete misunderstanding of the psychology behind
relationship breakdown.
How Relationships Breakdown
A significant shift in policy needs to occur in order to establish suitable
divorce law reform. The process of ‘uncoupling’ demonstrates that the law
should focus on ‘how-not-why-people make transitions out of
relationships’.115 There are rarely clear events that explain why a marriage
has broken down. Even if a spouse has had an affair or the other may have
behaved unreasonably, there is no foolproof way of determining one spouse
is more at fault than the other. For Vaughan relationship breakdown is ‘so
subtle, so complex, so volatile, so dynamic that using words to describe it
imposes a contradiction to reality’.116 Therefore, if the process is so
inherently complex the law should not seek to ask why the relationship broke
down by attributing fault or imposing periods of reflection or consideration,
but by asking how in order to gain a better understanding of relationship
breakdown. It seems credible to claim ‘only by understanding how things
come undone can healthier relationships be established’.117 If new family law
were to highlight the steps divorcing parties go through it could help people
who may be otherwise unaware of any relationship difficulties in order for
them to do something about it or be more prepared for the inevitable. Divorce
115
1986) 4.
116
1986) 79.
117
1986) 1.
36
law should not be entrusted with this role. Its role is to facilitate the end of a
dysfunctional relationship. However, family law in general can educate
couples to face the prospect of divorce. Thus family law and not divorce
should take into account the intangible concepts of emotion associated with
family breakdown.
Uncoupling is avoidable
The road to uncoupling is not inevitable; there is always a chance of
reversing the process.118 Initiators need to be aware that communication is
the key and ‘as the problems of the relationship become more and more
public, resurrecting the relationship becomes more and more difficult’.119
Criticisms of Uncoupling
Vaughan’s work has been criticised for failing to consider the social and
cultural structures that may affect the uniformity during uncoupling.
Vaughan’s sample fails to account for diversities based on the length of the
relationship and age of the respondents.120 Fundamentally problematic is the
absence of gender.121 A growing body of research suggests that experiences
118
1986) 184
119
1986) 184.
120
T Arendell, ‘Reviewed Work: Uncoupling: Turning Points in Intimate Relationships by
Diane Vaughan’ (1989) 94 The American Journal of Sociology 919.
121
Diane Vaughan’ (1989) 94 The American Journal of Sociology 919.
37
of intimate relationships vary by gender.122 The strength of Vaughan’s work
is the recognition that leaving a relationship involves a ‘multifaceted and
dynamic process’123, something the current law fails to recognise. However,
family law must account for the discrepancies in the narratives of men and
women. Chapter Three will discuss further the importance of gender
difference during the divorce process.
Exchange Theory and Divorce
Developmental Theory has emerged alongside Exchange Theory.124 The
latter states that the initiator will only reveal their true feelings about the
inadequacies of the relationship and desire to move on if the costs of staying
in the relationship are outweighed by the benefit of leaving. Benefits may
involve love, support, emotional security, sexual gratification and economic
status. Costs include work, responsibilities and limited amount of choice and
freedom.125 Exchange Theory reveals how divorce can be looked at from an
economic perspective. With the emancipation of women from the home, the
increased freedom of employment and birth control, marriages can often
hang on the presence of financial security and material benefits. Thus where
the total value of the marriage fails to be greater than the total value of the
couple if they were single, then the marriage is no longer viewed as efficient
122
S Waltzer and T P Oles, ‘Accounting for Divorce: Gender and Uncoupling Narratives’
(2003) 26 Quantitative Sociology 331.
123
Diane Vaughan’ (1989) 94 The American Journal of Sociology 919, 920
124
P R Amato and S J Rogers, ‘Do attitudes towards divorce affect marital quality’ (1999) 20
Journal of Family Issues 69
125
Press, New Haven and London 2006) 20; D Previti and P R Amato, ‘Why Stay Married?
Rewards, Barriers and Martial Stability’ (2003) 65 Journal of Marriage and Family 561
38
and financially beneficial.126 Investing in marriage specific capital, e.g.
children, has been found to strengthen the marital bond.127 Thus provided
the collective utility of the marriage is greater than the utility of an alternative,
the risk of divorce is greatly reduced.
The psychological theories discussed demonstrate that the decision to
divorce should not be understood from a moral absolutist standpoint;
declared by the law as being right or wrong. Ultimately the psychology,
sociology and economics of the divorce process are unique to every
individual relationship based on a specific context where the individual looks
at the consequences and implications of their decision on themselves and
others over a period of time. The theories mentioned above all point to the
existence of factors within a person’s psyche that can trigger the start of
relationship breakdown. This information should be used to develop an
accurate theory of marital quality and stability.
Incorporating Theory into Family Law
In order for the law to be effective, it must be based on accurate empirical
research. The law can educate couples most effectively through prospective
and longitudinal studies, which reveal factors that place spouses most at risk
of divorce alongside prevention strategies used to counteract them. Using
126
D W Allen, ‘The impact of legal reforms on marriage and divorce’ in A W Dnes and R
Rowthorn (eds), The law and economics of marriage and divorce (Cambridge University
Press, Cambridge 2002) 194
127
M Zelder, ‘For better or for worse? Is bargaining in marriage and divorce efficient?’ in A
W Dnes and R Rowthorn (eds), The law and economics of marriage and divorce (Cambridge
University Press, Cambridge 2002) 164
39
risk and prevention strategies is not a means of creating a formula for the
perfect marriage by encouraging certain conduct to achieve marital
happiness. Intimate relationships are inherently complex and contradictory.
On the one hand they appear to be the sole locus of intimacy,
interdependence and stability,128 and on the other it is a place where we are
our most vulnerable, opening up and sharing everything with our partner
where these flaws can be used against us as justifications for divorce.129
Risk and Prevention strategies reveal that there are a small number of
negative and interrelated patterns called ‘danger signs’130 that contribute to
divorce. Using this information can help raise awareness as to the pitfalls of
intimate relationships by highlighting factors that consistently contribute to
marital distress and divorce.
Risk Factor Analysis
Deviating slightly back to the Liberal arguments in Chapter One, Giddens
firmly believed that society is ‘increasingly pre-occupied with the
futureLwhich generates the notion of risk’.131 Modern societies are exposed
to risks.132 Giddens argued that ‘active risk taking is a core element of a
dynamic economy and innovative society’.133 I propose that marriage is a
risk, and each individual has particular characteristics that place the marriage
128
Ghaidan v Godin-Mendoza [2004] 2 AC 557, 139
129
1986)
130
Martial and Family Therapy 385, 399.
131
A Giddens, ‘Risk and Responsibility’ (1999) 62 Modern Law Review 1, 3
132
A Giddens, ‘Risk and Responsibility’ (1999) 62 Modern Law Review 1, 3
133
A Giddens, Runaway World: How Globalization is Re-Shaping our Lives (Routledge, New
York 2000) 29
40
at risk of divorce. Identifying and preventing these risks should strengthen
marriage.
A risk factor can be defined as ‘some specific characteristic displayed by a
person or their circumstances that bears some statistically significant
correlative position in relation to their behaviour’.134. This dissertation will not
list the various risk factors due to the fact that numerous surveys have
produced hundreds of variables that can predict divorce amongst couples
within a specific cohort. Halford however identifies four classes of variables
that consistently place couples most at risk of divorce. These are; couple
interaction, life events, individual characteristics and the cultural and social
circumstances surrounding the relationship.135
Interpersonal characteristics, in particular the couple’s communication skills
have had an affect on marital stability. It has been argued that if spouses are
able to communicate in a manner that facilitates problem solving and engage
in relationships activities as partners by emphasising the ‘we-ness’ they are
more likely to stay together than through indirect and aggressive forms of
communication and divided relationship roles.136 Couples, who communicate
effectively, have flexible and realistic expectations of their relationship and
view negative stressful life events as a shared challenge are more likely to
avoid the road to divorce. Other commentators believe a ‘divorce prone
134 nd
S Brown, Understanding Youth and Crime: Listening to Youth? (2 edn Open University
Press, Maidenhead 2005) 100.
135
136
41
personality’ exists.137 A personality characterised in terms of high levels of
neuroticism, disagreeableness and stress alongside low levels of
conscientiousness is at high risk of divorce.138 Many factors affect different
individuals at different times of their relationship. In particular different types
of intra-personal characteristics, as above, contribute to different types of
problems within a marriage that will affect the timing of divorce.139 Clark-
Stewart and Brentano have analysed various studies to arrive at the ten most
prevalent risk factors; young age, low income, race, rape, children, divorced
parents, level of education, work status and poor communication.140 Most
factors are inter-related. For example, some may claim that individuals who
marry young are more likely to leave education early and so will find it harder
to find employment with a high earning capacity, this low-socio economic
status produces heightened levels of stress that can affect the ability to
communicate effectively leaving the couple at high risk for divorce by
comparison to those with higher socio-economic status.141 However, there is
no use in developing a theory on the psychology of relationship breakdown if
it has no practical importance in the lives of couples within intimate
relationships.
137
138
L Kurdeck, ‘Predicting marital dissolution: A 5 year prospective longitudinal study of
newlywed couples’ (1993) 64 Journal of Personality and social psychology 211.
139
L Kurdeck, ‘Predicting marital dissolution: A 5 year prospective longitudinal study of
newlywed couples’ (1993) 64 Journal of Personality and social psychology 211.
140
Press, New Haven and London 2006)
141
Press, New Haven and London 2006)
42
Effective Legal Intervention
Couples may enter into a marriage without fully appreciating the legal
significance of the step they are taking without understanding the
psychological complexities and pitfalls marriage produces. The law can only
be effective if it educates the couple as to the road ahead. The stage
intervention can take place is difficult to determine. Legal intervention in the
marital relationship must remain consistent with a liberal individualist
approach to family law mentioned in Chapter One. The need for schools,
propaganda and national education142 to help children understand the
complexities of relationship breakdown is an encouraging start.143 National
compulsory education about smoking, alcohol and drug abuse has been
used extensively with positive results.144 Relationship education programmes
could focus on the factors that are proven, through the use of risk factor
analysis, to make for an unhappy marriage. Furthermore, potential spouses
need to be made aware that the dedication and optimism with which they
enter the marriage will fade in the long term and life will inevitably produce
stresses and temptations that present the opportunity to weaken the marital
bond. ‘Marriage is not just a honeymoon and romance’.145 The law could
introduce marital commitment mechanisms embedded within the marital
contract that enable couples to opt-in or opt-out of relationship education and
142
Lord Mishcon, Hansard HL vol 525 col 813 (31 January 1991)
143
R Deech, ‘Divorce a Disaster?’ [2009] Fam Law 1048
144
N Coggans, ‘Drug education and prevention: Has progress been made?’ (2006) 13
Drugs: Education, Prevention and Policy 417; C Lloyd, R Joyce, J Hurry and M Ashton, ‘The
Effectiveness of Primary School Drug Education’ (2000) 7 Drugs: Education, Prevention and
Policy 109; R Midford, ‘Does Drug Education Work?’ (2000) 19 Drug and Alcohol Review
441
145
Lord Mishcon, Hansard HL vol 525 col 813 (31 January 1991)
43
analysis before the marriage and at points during the marriage such as
parenthood. Pre-marriage support will help the couple prepare for married
life, enable them to deal with problems in their relationship and seek early
help during the first signs of relationship difficulties.
Non-Legal Responses to Marital Breakdown
The law cannot provide all the solutions to marital problems. Social workers,
psychologists and psychiatrists play an important role in resolving difficulties
couples face. Thorpe LJ recognized this, arguing that some familial
difficulties would ‘be better treated therapeuticallyLrather than given vent in
the family justice system’.146 This is not an argument in favour of anti-
legalism, but rather it seeks to recognize the ‘autopoietic’ position of the law,
whereby one discipline, the law, adopts the knowledge of other disciplines,
such as psychology, economics and sociology.147 Couple Relationship
Education (CRE) provides a good example of how the law can be influenced
by external discourses such as social work, education and psychology.148
CRE involves a four-stage process aimed at strengthening the relationship.
Awareness, Feedback, Cognitive Change and Skills Training provides
couples with information about their relationship whilst clarifying expectations
and encouraging positive communication, conflict management skills and
146
Re L (A Child) (Contact: Domestic Violence) [2000] 2 FCR 404, 439
147
J Eekelaar, ‘Family Justice: Ideal or Illusion? Family Law and Communitarian Values’
(1995) 48 Current Legal Problems Part II 191, 198
148
Martial and Family Therapy 385.
44
positive expressions of affection toward one another. This non-legal form of
education should become part of the marital contract.
Some commentators might argue that relationship education constitutes a
dogmatic approach to law reform that entrenches couples in the same way
as the FLA. However, the latter involves a paternalistic restriction on the
freedom of individuals to leave a marriage in order to promote behaviour the
State considers acceptable, whereas the former exists for the benefit of the
parties themselves. Liberal individualism can be maintained on the basis that
such schemes will be voluntary, allowing couples, perceived to be high risk,
to contemplate the implications of marriage and the pitfalls during the
relationship that can lead to divorce. Unlike the failed pilot projects under the
FLA, these proposals do not seek to control the behaviour of couples through
providing information in a persuasive manner, but rather it educates couples
on the complexities of relationship breakdown so that healthier relationships
can be established in the future.
Criticisms of Risk Factor Analysis
One of the main objections levelled against risk factor research is that it
presents individual risks within an isolated sample as uncontroversial
facts.149 The patterns and correlations that emerge from the studies do not
necessarily identify objective and concrete causes of divorce within all
relationships. Thus the findings of an isolated sample do not represent the
149 rd
J Muncie, Youth and Crime (3 edn, Sage, London 2009)
45
lived experiences of the wider community.150 In particular the meta-analysis
of divorce risks undertaken by Wagner and Weis between 1985 and 2004,
suggest that the most common risk factors; pre-marital cohabitation, the
presence of children and parental divorce vary across European
jurisdictions.151 Societal context can impact on the intensity of risk factors. In
comparing the UK with Finland it was found that pre-martial cohabitation
increases the risk of divorce by 41.06% in the former and only 2.94% in the
latter.152 Parental divorce in the UK increased the risk by 36.75% compared
with 96.04% in Switzerland.153 A theory of marital quality and stability,
incorporated within family law, must remain flexible and open-ended so that
studies can continually be used to identify factors that place couples at risk of
divorce on a national level. Moreover, studies have been criticised as being
‘embarrassingly white and affluent’.154 Therefore, research must incorporate
minorities and define groups carefully. Nevertheless, through utilizing a
meta-analysis of risk, a number of recurrent themes have emerged. These
findings must be given due consideration when explaining the causes of
family breakdown and in making a future family law policy.
150
S Stanley, ‘Strengthening Marriages and Preventing Divorce: New Directions in
Prevention and Research’ (1995) 44 Family Relations 392.
151
M Wagner and B Weiss, ‘On the Variation of Divorce Risks in Europe: Findings from a
Meta-Analysis of European Longitudinal Studies’ (2006) 22 European Sociological Review
483
152
490
153
490
154
M E Lamb, K L Sternberg and R A Thompson, ‘The effects of divorce and custody
arrangements on children’s behaviour, development and adjustment’ in M E Lamb (ed.),
Parenting and Child Development in “non traditional families” (Erlbaum, New Jersey) 125
46
Conclusion
Marriage saving has been a recurring theme within recent divorce reforms. In
this author’s view instead of using divorce law to strengthen marriage and
restrict the freedom of divorcing spouse’s, family law can be used to educate
couples who are married or intend to marry as to the psychological
complexities of relationship breakdown. An accurate theory of marital quality
and stability can be achieved through couple relationship education and the
education of young persons still in school, rather than through the mandatory
slowing down of the divorce process.
47
Chapter 3: The Cultural and Political Context of Divorce Reform
The issue of when an individual’s freedom can legitimately be restricted is
central to law and the legal system155 and will be considered in more detail
further on. The Conservative party’s proposals for divorce reform,156 only last
year, will be used as the most recent example to demonstrate how divorce
law would be used as a continuum to justify State intervention in family life.
Wider Communitarian agendas for protecting the institution of marriage and
reducing the cost of divorce on the public purse are again used to justify
restrictive measures on the freedom of individuals to divorce.
The previous two sections advocated a Liberal individualist approach to
divorce criticizing any Communitarian or Post-liberal approaches that failed
to respect the private decisions of married couples. The liberalization of
divorce was justified as a way of avoiding State intervention within the
divorce process. However, insulating the divorce process away from legally
regulated State control can entrench women within the private domain of the
family and as a result their legal needs and problems fail to enter the public
domain of formal justice.156 Mediation, a key part of any no-fault liberal
divorce law reform, will be used as an example to reveal the cultural and
155
A. E Morris and S. M. Nott, Working Women and the Law: Equality and Discrimination in
Theory and Practice (Routledge, London 1991) 35
156
Centre for Social Justice, ‘Breakthrough Britain: Every Family Matters’ (2009) sponsored
by Doha International Institute for Family Studies and Development <
www.centreforsocialjustice.org.uk> accessed 29 January 2010
156
London 1985)
48
political drawbacks of adopting a no-fault liberal approach.
The Centre for Social Justice (CSJ): Conservative Divorce Reform
Historically, Conservative party politics promote the moral and social well
being of the community, retaining traditional institutions and a bourgeoisie
lifestyle.157 Policies have sought to establish selective social benefits, such
as tax breaks for married couples,158 with little consideration of the growing
numbers of single mothers and cohabiting couples. Most importantly they
deplore social change that leads to easier divorce law.
The Conservative party’s 2009 proposals have been formulated in such a
way that ‘divorce reform discourse’ has been changed to ‘marriage saving
discourse’.159 The proposals appear to mirror the failed FLA criticized at
length in Chapter One. The Conservatives argue; ‘Marriage is of paramount
importance to individuals, children, communities and our nation’.160 Marriage
is viewed as intrinsically good and divorce is seen as inherently bad and to
be avoided at all costs. The proposals introduce 3-month ‘periods of
reflection and consideration’ including information meetings similar to those
157
P Whiteley, P Seyd and J Richardson, True Blues: The Politics of Conservative Party
Membership (OUP, Oxford 1994) 128
158
R Winnett, ‘Tories Promise Tax Breaks for Married Couples’ The Telegraph (London 22
August 2008)
<http://www.telegraph.co.uk/news/newstopics/politics/conservative/2604297/Tories-promise-
tax-breaks-for-married-couples.html> accessed 18 March 2010
159
M Adams, and S Coltrane ‘Framing Divorce Reform: Media, Morality, and the Politics of
Family’ (2006) 46 Family Process 17, 17.
160
by Doha International Institute for Family Studies and Development
<www.centreforsocialjustice.org.uk> accessed 29 January 2010 [2.1.9] pg 59
49
introduced under the FLA.161 There is a clear belief that the ‘mandatory
slowing down of the divorce process’162 will breed stronger relationships and
healthy post-divorce families.
The Family Law Act all over again
The Conservatives have not learned their lessons from the failed FLA.
Arguably both seek to advance a marriage movement based around cooling
off periods and the provision of information as a roadblock to divorce. The
only difference between the two is that the CSJ proposals modify the
information meetings to include legal representation on the basis that the
‘necessary level of legal experienceLis at the heart of the problem of
information delivery’.163 Arguably the pilot projects failed because it was
unable to achieve its primary goal of saving (saveable) marriages. The pilot
results reveal that only 7% sought Mediation after the provision of
information, and 39% were more, rather than less likely to seek legal
advice.164 Modifying the information meetings to include legal representation
does not overcome its inherent problem. The mandatory slowing down of the
divorce process is based on the assumption that divorce is bad, marriage is
161
162
163
164
R Collier, ‘The Dashing Of A 'Liberal Dream'? - The Information Meeting, The 'New
Family' And The Limits Of Law’ (1999) 11 CFLQ 257
50
good and family life should be supported.165 It seeks to control the behaviour
of couples to achieve the world policy makers would like it to be. In reality the
law is ‘impotent to control how people actually behave in their
relationships’.166
The proposals of the CSJ, the current law on divorce and the FLA reforms all
reveal how out of touch policy makers are with the lived realities of everyday
couples. The failed pilot projects and the fact that 75% of divorce petitions
are issued on fault grounds leading this author to conclude that couples want
a swift end to the divorce process; they do not want an imposed ban on
divorce in order to save the marriage. The period between the issuing of a
divorce petition and the grant of decree absolute leaves an individual in limbo
between marriage and life as a single entity. Couples are entrenched, unable
to recover, and realise their authentic self. Only by providing couples with an
easy outlet can their needs be met. The CSJ proposals, like the FLA, ignore
the lived realities of everyday couples and instead impose reforms based on
Communitarian moral panics, social goals and traditionalist politics.
Political Responses to Marital Breakdown
Statistics suggest divorce rates in 2009 have been at its lowest since 1979
165
R Collier, ‘The Dashing Of A 'Liberal Dream'? - The Information Meeting, The 'New
Family' And The Limits Of Law’ (1999) 11 CFLQ 257
166
C Clulow, ‘Preventing marriage breakdown: towards a new paradigm’ (1996) 11 Sexual
and Relationship Therapy 343
51
with 11.2 divorcing people per 1000 of the married population.167 Yet despite
this the Conservatives still assume that divorce is uncontrollable and we are
living in a culture of individualism and relationship breakdown. There is a
symbolic image of divorce as social disorder that justifies intensive State
intervention in the private domain.168 This symbolic image dominates political
discourse and influences law reforms to the detriment of those individuals the
law is supposed to support. Coleridge J argues, ‘our society represents a
complete and uncontrollable free for all where being true to ones needs is
the only yardstick for controlling behaviour’.169 Coleridge was quoted at
length in the CSJ proposals providing judicial backing for the belief that the
liberation of the self from the constraints of fault based laws may seem ‘new,
exciting and democratic’, but it will be detrimental to society’s moral fabric.170
Coleridge and the Conservatives call for the ‘reaffirmation of marriage as the
gold standard’,171 arguing that divorce contributes to family instability and
social decline and thus the only way to counteract this is for the State to
restrict the private decision to divorce and encourage spousal responsibility
towards one another through supporting the institution of marriage. It seems
credible to claim the main ‘feature of British politicsLhas been the
167
ONS, ‘Divorces England and Wales Rate at 29 year Low’ (2009)
nd
http://www.statistics.gov.uk/cci/nugget.asp?id=170 accessed 2 March 2010
168
Family’ (2006) 46 Family Process 17, 24.
169
Family Holiday Association, ‘Holiday and Families’ HC (2009) <
www.fhaonline.org.uk/.../COUNCIL090616MrJusticeColeridgeSPEECH.pdf> accessed 22
November 2009 pg 7
170
171
November 2009 pg 9
52
predominance of form over substance’.172 The repeal of the FLA
demonstrates how the State is concerned with the presentation of policy
rather than the content of the policies themselves.
Sending the Right Message
The Government behaves irrationally173 by using family law; ‘It was important
that the divorce law should send the right messages, to the married and the
marrying, about the seriousness and permanence of the commitment
involved’.174 The law is used as a means of infiltrating the private domain of
intimate relationships. However, rising rates of cohabitation and decreasing
divorce and marriage rates means that policies which support families almost
entirely on the basis of marriage ‘leaves the government with its head rather
deep in the sand’.175 The repeal of the FLA reveals how family law legislation
in the 1990s was imposed ‘from the top down’ rather than as a response to
social pressure ‘from the bottom up’.176 There is no need for divorce law to
send what the Government perceives as the ‘right message’. In accordance
with the views of Bauman people are naturally able to form their own moral
judgments. ‘To be moral does not mean to be good, but to exercise ones
own freedom of authorship’.177
172
J Eekelaar, ‘Family Law: Keeping Us on Message’ [1999] CFLQ 387
173
A Barlow and S Duncan, ‘New Labour's Communitarianism, supporting families and the
'rationality mistake': Part I’ (2000) 22 JSWFL 23
174
Law Commission, ‘Family Law: The Ground for Divorce’ (Law Com No 192 HC 636,
1990) para 3.4
175
'rationality mistake': Part II’ (2000) 22 JSWFL 129, 141
176
177
Z Bauman, Life in Fragments (Blackwell: Oxford 1995) 1
53
The Privatization of Divorce and the Feminist Critique of Mediation
A shift in emphasis from a fault based adversarial system where victims were
publicly pitted against wrongdoers towards no-fault legislation where divorce
is seen as a private decision between an unhappy but legally blameless
couple seems an inevitable conclusion.178 The move from fault to no-fault
allows for the de-regulation of the divorce process where couples could
make their own decisions without being subject to public moralizing under
the fault based regime. However, the acceptance that couples should be free
to make their own decisions on marital breakdown produces strong counter
arguments by feminist writers, such as Scutt179, Bottomley180 and
O’Donovan.181
No-fault legislation shifts the emphasis away from conflict to alternative forms
of dispute resolution such as mediation. Mediation is defined as ‘a process in
which an impartial third person, the mediator, assists couples considering
separation or divorce to meet together to deal with their arrangements which
need to be made for the future’.182 Under the current law there is an
obligation on anyone seeking public funding and legal aid to attend a
178
Family’ (2006) 46 Family Process 17, 17
179
J A Scutt, ‘The Privatization of Justice: Power Differentials, Inequality, and the Palliative
of Counselling and Mediation’ (1988) 11 Women’s Studies Int. Forum 503
180
London 1985)
181
K O’Donovan, Sexual Divisions in Law (Weidenfeld and Nicolson, London 1985)
182
Secretary of State Michael Howard, ‘Looking to the Future: Mediation and the Ground for
Divorce’ (Cm 2799, 1995) [5.4] pg 37-38
54
meeting to consider whether mediation may be a suitable option.183 The
Conservative’s proposals for reform would implement mandatory meetings
for both private and publicly funded divorces in order to consider mediation
as a useful separation strategy.184 Counseling, conciliation, and mediation
were proposed as positive alternatives to the traditional adversarial system
that would decrease conflict, reduce the time taken in dispute resolution and
keep down the costs of justice.185 Liberal no-fault laws and the emergence of
mediation are interlinked; both seek to ensure that the parties reach a
decision for themselves rather than have it publicly imposed on them by the
State. Similarly the use of mediation ties in with the arguments put forward in
Chapter Two that divorce should account for the psychological and emotional
problems couples go through during relationship breakdown. Mediation
confines disputes, conflicts and problems within the private arena rather than
having decisions being imposed upon families by an external authority based
on abstract principles. Mediation is presented ‘as the desirable outcome of
progress in the development of family law over the years’.186 However,
Feminists argue that insulating the divorce process away from public
moralizing of policy makers, through mediation, facilitates domination of the
stronger party over the weaker party in a supposedly neutral environment.
183
Family Law Act 1996, s 29
184
185
of Counselling and Mediation’ (1988) 11 Women’s Studies Int. Forum 503, 504
186
A Diduck, Law’s Families (Lexis Nexis, London 2003) 105
55
The Privatization of Divorce
‘Wives have legal equality with their husbands in all the main areas of family
law’.187 For feminists this is untrue. ‘Marriage is a power relation’.188
Therefore any form of dispute resolution that fails to recognize this will be
ineffective, and could advantage the party having greatest power, which is
usually the man.189
Although in theory mediation appears advantageous, promoting a system of
co-operation between the parties on an equal platform, it is ‘unrealistic vision
of the world’.190 Feminists argue that society produces power differentials
between men and women where the beliefs of the powerful are perceived to
be right and all other views are discarded. Most importantly the privacy
associated with mediation ensures the party’s abuse of the process never
comes to public attention.191. In this context, liberal laws which emphasize
unconstrained free will and place the decision to divorce in the hands of the
parties will support power differentials between men and women, hiding the
injustices within the family home and presenting the sexual division of labour
as ‘natural’ and ‘inevitable’.192 Arguably, an individualist and rights based
approach is only useful to couples who assert equal levels of power over the
relationship. Where gender relations are unequal the enforcement of rights
187
Lord McGregor of Durris, Hansard HL vol 525 col 818 (31 January 1991)
188
189
190
191
M Lichtenstein, ‘Mediation and Feminism: Common values and challenges’ (2000) 18
Mediation Quarterly 20
192
R Collier, Masculinity, Law and the Family (Routledge, London 1995) 61
56
will operate unequally. Therefore, in some contexts ensuring the well-being
of couples during the divorce process may require more, rather than less,
State intervention.
Moreover, it has been argued that women face a mediator who appears to
be neutral but in fact is the purveyor of dominant social values, which are
oppressive to women.193 Therefore, when divorce disputes are dealt with
through mediation rather than in the public domain they inevitably become
private events devoid from legal intervention; enabling men to exercise
power over women.194 So, although divorce must be granted in order to allow
women freedom from the family home as the main site of oppression there is
also a need to publicize power differentials and male-female inequalities,
rather than privatize them through hidden ‘justice’ processes like counseling
or mediation.195
This dissertation forwards Bottomley’s conclusion that lawyers should be
present during the process as they can mitigate any power imbalance
between the parties.196 Empirical research has shown that solicitors take
account of their client’s attitude and emotional capacity to engage in face-to-
face negotiation.197 Their role must not be undermined. Formal justice should
193
of Counselling and Mediation’ (1988) 11 Women’s Studies Int. Forum 503 ,512
194
K O’Donovan, Sexual Divisions in Law (Weidenfeld and Nicolson, London 1985) 11
195
of Counselling and Mediation’ (1988) 11 Women’s Studies Int. Forum 503
196
London 1985)
197
G Davis, G Bevan, S Clisby, Z Cumming, R Dingwall, P Fenn, S Finch, R Fitzgerald, S
Goldie, D Greatbatch, A James and J Pearce, ‘Monitoring Publicly Funded Family Mediation:
57
be maintained over individual needs on the basis that it gives substantive
rights and offers procedural safeguards to the weaker party. Bottomley’s
approach, as per Gidden’s in Chapter One, recognizes that, in a modern
society, divorce law discourse lies on the boundary of the public and private
spheres. It needs public legal regulation in order to ensure that any
inequalities are taken into consideration. And yet the process of divorce must
be sufficiently private to ensure that the State avoids imposing its own beliefs
as to correct modes of behaviour at certain points during this process.
The ‘Darker Side’ of Divorce
In all that has been mentioned hitherto the ‘darker side’ of divorce has not
been accounted for.198 Liberalist theory in Chapter One,199 and
Developmental200 and Social Exchange201 Theories in Chapter Two account
for divorce on the basis of a lack of fulfilment either because expectations
have not been met, a clear lack of compatibility or the presence of an
attractive alternative. Divorce is granted in order to allow for the realisation of
the self.202 Mediation, mentioned above, celebrates individuality, individual
Report to the Legal Services Commission’ (Legal Services Commission: London 2000) pg
204
198
Policy’ (1997) 26 Jnl Soc. Pol 301,312.
199
200
1986)
201
202
58
choice and individual rights.203 This all contributes to the claim that the
divorce process should exist within a non-legal realm. However, a large
percentage of divorces are petitioned on the basis of domestic violence,
bullying, economic deprivation and cruelty. Davis et al. found that 57% of
parents who reported a fear of violence were nonetheless deemed suitable
for mediation.204 The need to liberalise the law, as a consensual and conflict
free divorce process, should not occur at the expense of publicising violence
and abuse within marital relationships. The problem of power and the
exploitation of the weaker party take place in relationships where there has
been a history of domestic violence. Mediation and no-fault laws in general
fail to account for this.
Conclusion: Striking a Balance
Arguably, all family law policy, regardless of political association, is based on
a ‘rationality mistake’. The liberal individualist arguments in Chapter One,
which create an image of individuals living isolated lives protected by their
right to privacy and autonomy, should apply to divorce law. However, this
constructs a society of self-interested individuals unaffected by wider
community interests of gender equality and child protection. A balance must
be struck. On the one hand, the divorce process should remain legalized in
order to publicize inequalities that can occur so that the needs of vulnerable
203
204
G Davis, G Bevan, S Clisby, Z Cumming, R Dingwall, P Fenn, S Finch, R Fitzgerald, S
Goldie, D Greatbatch, A James and J Pearce, ‘Monitoring Publicly Funded Family Mediation:
Report to the Legal Services Commission’ (Legal Services Commission: London 2000) pg
58
59
women and children are protected under the law. On the other, liberal no-
fault laws on divorce should be encouraged without the State imposing what
it believes is the correct form of marital behaviour. With this in mind a
suitable divorce reform can now be proposed.
60
Chapter 4: Divorce Reform
Divorce Law Proposals
This dissertation proposes no-fault divorce reform, based solely upon the
irretrievable breakdown of the marriage with two grounds: mutual consent,
and separation. Marital misconduct becomes nugatory. Although Sclater is
right that anger and ambivalence are natural emotions during the divorce
process,205 the law should not encourage negative sentiments between
spouses. Furthermore, Wiseman’s psychological transitions of relationship
breakdown reveal how negative states of anger and ambivalence are
eventually replaced by positive re-orientation of lifestyle identity acceptance
and integration.206 Divorce law should facilitate this transition.
There is a repeated fear within Parliamentary debates that liberalizing the
divorce process will increase the divorce rate and have negative economic
and social consequences for women and children.207 There is no causal
evidence to suggest liberal laws are solely responsible for increasing the
divorce rate.208 However, some empirical evidence suggests that adults
exposed to no-fault unilateral divorce as children ‘are less well educated, and
205
S Sclater, Divorce: A Psychosocial Study (Ashgate, Aldershot 1999)
206
R S Wiseman, ‘Crisis Theory and the Process of Divorce’ (1975) 56 Social Casework 205
207
Lord Mishcon, Hansard House of Lords volume 525 cols 812-54 (31 January 1991) [813]
208
I M Ellman, ‘The misguided movement to revive fault divorce, and why reformers should
look instead to the American law institute’ (1997) Int. J.L.P.F 11 216
61
have lower family incomes’.209 More worryingly, there is some evidence to
suggest a correlation between unilateral divorce and suicide rates amongst
affected children in later life.210 In recognition of this, a balance should be
struck thus giving effect to the autonomy of divorcing spouses but also
ensuring protection of vulnerable parties within the relationship. A distinction
could be made by permitting divorces by childless couples on mutual
consent and divorces with children or a reluctant partner following a period of
separation. This balance has become a political reality in Scotland.211 Where
both parties consent to the divorce, the change to the relevant period
reduces from two years to one year.212 Where one party does not consent to
the divorce the change to the relevant period is from five years to two
years.213 This is a step in the right direction. However, this dissertation
proposes a separation period of six months, similar to divorce law in
Sweden, where there is a child or reluctant spouse. If the couple can reach
an agreement the divorce could be implemented sooner.
A six month separation period is sufficient to allow both parties, in particular
the non-initiator, to separate emotionally and psychologically. Thereafter,
both parties should reasonably be ready to carry out the legal steps
necessary to divorce and settle all financial matters and child care
arrangements. Even after filing for divorce, where arrangements cannot be
209
210
211
Family Law (Scotland) Act 2006
212
Family Law (Scotland) Act 2006 s 11
213
Family Law (Scotland) Act 2006 s 11
62
consensually negotiated for the sake of the children and the interests of both
parties in order for them to lead new and independent lives, there should be
no roadblocks. Rather, the couple would be fast-tracked into a post-
separation procedure. Divorce procedures would not be liberalized to such
an extent that the separation process becomes ‘DIY’. Drawing on the
conclusions within Chapter Three, legal representation would remain. The
primary goal of mediation, an amicable settlement based on consensus by
the divorcing couple would still be maintained with the parties retaining the
benefit of legal advice and negotiation best suiting the circumstances of the
case and the client’s needs particularly to protect inequality and imbalance,
and overall the welfare of the children must be taken into account.214
Family Law Proposals
Following on from the arguments in Chapter Two; ‘A divorce that is withheld,
delayed or obstructed does not save a marriage’.215 When divorcing parties
have altered their internal and external lives to such an extent that they are
completely distinct and separate from one another, the dysfunctional
marriage cannot be saved and the wishes of both parties must be respected.
An accurate theory of marital quality and stability should therefore be
implemented into the general framework of family law.
214
Children Act 1989
215
63
This dissertation proposes legal intervention at the pre-marriage stage, and
compulsory education within schools as to the complexities of relationship
breakdown. ‘The ability to sustain intimacy in adult life is fundamentally
rooted in childhood’.216 Empirical research reveals how our sense of trust,
capacity for mutual concern, ability to reflect on our own actions and the level
of sensitivity to alternative viewpoints are all qualities children develop during
their upbringing.217 At a later date, couples, before entering into marriage,
can opt-in or opt-out of commitment mechanisms incorporated into the
marital contract. At certain stages of the marriage, normally between the 5-
10 year periods, or at key relationship transitions such as parenthood,
couples could also undergo relationship education programmes set up within
a legislative framework. Without controlling the free will of either party,
proposed commitment mechanisms and education training would remain
voluntary. Relationship education would not take the form of the pilot projects
under the FLA which had a persuasive function steering the parties towards
saving the marriage or divorcing responsibly. Rather, it should tackle
practical aspects such as debt, tax, parenting issues and then delve into the
deeper psychological complexities of the relationship. Most importantly,
throughout the process, ‘The expertsLare the couples themselves’218 rather
than the State.
216
217
218
and Relationship Therapy 343, 348
64
Conclusion
Within the context of a dissertation it is impossible to propose a new
legislative framework. However I have put forth a number of arguments
which could form the basis of a radical divorce and family law reform. Law
reform should reflect changing social norms that have occurred in our society
since 1973. It is an error to use divorce law to regulate the personal conduct
of marital partners in order to save marriage. As Eekelaar writes:
‘The history of the law of divorce, designed to secure monogamous
marriageLtestifies its ultimate failure to inhibit the development of social
norms’.219
As I have argued throughout, the social,220 economic,221 philosophical222 and
psychological223 arguments suggest a divorce law intended to save marriage
does not work.
A Liberal approach to divorce law reform embraces individualism, allowing a
divorcing couple to exercise their autonomous nature and make their own
marital choices. It recognizes that the concept of traditional, stable and
219
J Eekelaar, ‘Family Law: ‘Keeping us on Message’’ [1999] CFLQ 387
220
A James and M Richards ‘Sociological perspectives, family policy, family law and
children: Adult thinking and sociological tinkering’ (1999) 21 JSWFL 23
221
222
D Nelken, ‘Law in Action or Living Law? Back to the Beginning in Sociology of Law’
(1984) 4 Legal Studies 157
223
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York)
65
permanent marriage has been replaced with a purer relationship,224 which
views humans, in particular women, as agents of change225 uncontrolled by a
pre-determined set of rules based on an external authority.226 A Liberal
approach views divorce as a socially acceptable process which recognises
our changing identity, needs and desires. As Giddens suggests, the ‘self’ in a
late modern society is fluid.
The aim of divorce law reform should be to enable people to leave a
marriage succinctly, but with the appropriate safeguards. The need to
respect one party’s control and autonomy should be restricted where the
rights of the other within the relationship are adversely affected.227 A
separation period of six months followed by swift post-divorce procedures
conducted within the justice system, ensures the rights of both parties,(taking
into account any sexual or other disadvantage) and the welfare of any
children are dealt with effectively without any unnecessary restrictions on
either party to move on.
Developmental228 and Exchange229 theories provide a psychological basis
not only to criticize existing law but to propose radical change. Uncoupling
and Micro-Economic Theory, as mentioned in Chapter Two, reveal how
224
A Giddens, The Transformation of Intimacy (Polity Press, Cambridge 1992) 58
225
Policy’ (1997) 26 Jnl Soc. Pol 301
226
A Diduck, Laws Families (Lexis Nexis, London 2003) 7
227
D Bromwich and G Kateb (eds), On Liberty: John Stuart Mill (Yale University Press, New
Haven: London 2003)
228
1986)
229
66
relationship breakdown is a lengthy process where both initiator and non-
initiator have reflected and considered the consequences of life together and
life as a single entity. Contrary to the beliefs of policy makers, the petition of
divorce represents the end of the marriage and the end of any attempts to
save it. Further, the psychological literature and risk factor studies reveal an
important but conveniently ignored truth about divorce; one event rarely
causes divorce.230 Many factors contribute to marital breakdown such as
marrying young, low educational attainment, stress, unrealistic expectations,
poor communication skills, an attractive alternative and prior cohabitation to
name but a few.231 Although some may argue risk factor studies do present
isolated risks based on a ‘white affluent’232 cohort the future of family law
policy must be driven by studying families in the real world as they cope with
disintegration of the marriage by looking at the processes that lead to divorce
through more accurate, prospective longitudinal studies.
Incidentally, these psychological theories were intended to provide an
account of relationship breakdown applicable to both married and non-
married and heterosexual and same sex couples. Statistics suggest the
proportion of married couple families has decreased over the last ten years,
(accounting for 71% of families in 2006, compared with 76% in 1996).233
Over the same period the proportion of cohabiting couple families increased
230
231
232
M E Lamb, K L Sternberg and R A Thompson, ‘The effects of divorce and custody
arrangements on children’s behaviour, development and adjustment’ in M E Lamb (ed.),
Parenting and Child Development in “non traditional families” (Erlbaum, New Jersey) 125
233
ONS, ‘Overview of Families: Cohabiting is the fastest growing family type’ (2010)
nd
<http://www.statistics.gov.uk/cci/nugget.asp?id=1865> accessed 2 March 2010
67
to 14% from 9%.234 This dissertation has been limited to a socio-legal study
of current divorce law. There is no reason why family law should not provide
a suitable legal mechanism for the plurality of family forms235 by
strengthening non marital relationships and dissolving relationships based on
the same reasoning. Family law policy based entirely on marriage leaves the
Government with its head ‘rather deep in the sand’.236
The ‘moral dodos’ in power would argue that the author’s liberal individualist
approach with safeguards protecting inequalities ignores the fact that when
implementing any form of legislation one should always seek socially and
economically desirable ends that benefit the community to avoid increased
social costs in the form of state sponsored benefits and educational
underachievement.237 These proposals do not increase pressure on the
public purse; they simply require a shift in political focus towards an
acceptance of social change. If divorce is, indeed inevitable in society, then
couples should be educated to face the possibility of divorce.238 If
Government truly believes that marriage is the ‘gold standard’239 and is
serious about the need to promote marital quality and stability as a desirable
social and economic end for couples and the state, then divorce per se is not
the answer.
234
ONS, ‘Overview of Families: Cohabiting is the fastest growing family type’ (2010)
nd
<http://www.statistics.gov.uk/cci/nugget.asp?id=1865> accessed 2 March 2010
235
A Bainham, ‘Family Law in a Pluralistic Society’ (1995) 22 JLS 234
236
237
238
239
November 2009 pg 9
68
To conclude, divorce is a unique discourse. It deals with concrete rules,
procedures and precedents but also intangible emotions of love, hate, anger,
intimacy, passion and betrayal.240 Conservatives seek to deal with the
chaotic nature of divorce law discourse by ignoring social change, making
divorce more difficult in order to save marriage and regain some stability.
We must accept social change and allow for a radical overhaul of divorce
and family law. Divorce law should end a dysfunctional relationship with
safeguards in place to prevent gendered and structural inequalities.
However, the ‘autopoietic’ position of family law241 deserves greater
recognition, relying on alternative discourses, in order to achieve more
successful relationship outcomes. My point, therefore, is this- if we embrace
change and expand our epistemological understanding of divorce, the law
and relationships in general will be far better as a result.
240
241
J Eekelaar, ‘Family Justice: Ideal or Illusion? Family Law and Communitarian Values’
(1995) 48 Current Legal Problems Part II 191, 198
69
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Benjamin Stowe - A Socio-Legal Study of Divorce and Family Law in England and Wales

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Name: Benjamin Stowe

Dissertation Supervisor: Norma Martin Clement

Student ID: 200245794

Word Count: 12,248

Divorce Law Reform?

Table of Statutes ............................................................................................ 5

Chapter 2: An Accurate Theory of Marital Quality and Stability....................28

Chapter 3: Cultural and Political Context of Divorce Reform........................48

Fitzpatrick v Sterling Housing Association [1998] 1 FLR 6............................31

Ghaidan v Godin-Mendoza [2004] 2 AC 557................................................40

Re L (A Child) (Contact: Domestic Violence) [2000] 2 FCR 404...................44

Smith v Smith [2009] EWCA Civ 1297..........................................................11

Children Act 1989..........................................................................................62

Divorce and Matrimonial Causes Act 1857...................................................13

Family Law (Scotland) Act 2006....................................................................61

Family Law Act 1996..................................................................8, 13,14,24,54

Matrimonial Causes Act 1973.......................................................................11

commentators saw the Act as revolutionary. It removed matrimonial fault

aim as all previous pieces of divorce legislation. It explicitly declared its

support for marriage, and imposed a framework of mechanisms designed to

keep couples together. In the face of individualism and society’s growing

reluctance to embrace life-long committed relationships the Government

namely controlling behaviour in order to save marriage. Following on from

the FLA failure, this dissertation examines the competing constructions of

shared moral values of the community, impose responsibilities and restrain

the pursuit of individual desires. By contrast, the failed FLA, according to

Reece, reveals a new Post-Liberal conception of divorce as an educative

divorce responsibly by considering the consequences of their actions, before

pursing their own self-interests. Neither approach is a suitable theoretical

framework for divorce reform as they both advocate in favour of periods of

marital entrenchment in order to ensure the ‘responsible decision’ is made

Libertarians who believe that within the private sphere of intimate

controlling how people actually behave in their relationships. The power of

dissertation also goes on to suggest that a dramatic shift in policy is needed

in order for workable divorce reform to be implemented. Divorce law is the

such as psychology, sociology and economics reveal how relationships

with an opportunity to strengthen relationships based on this information.

connection between social context and legal doctrine. By considering how

individuals regulate their own family breakdown, rather than relying on

normative statements about the correct forms of behaviour, more suitable

divorce reforms emerge.1 This dissertation is a socio-legal study of divorce

economics, philosophy and psychology.

unsuccessful implementation of the FLA. It will make reference to the

reform declare its aim to be as such.4 I aim to demonstrate that divorce

reform should not advance a marriage saving agenda; rather it should

promote a Libertarian, as opposed to Communitarian or Post-Liberal ideal.

The debate will be based on the arguments proposed by Giddens5, Beck-

breakdown as an inevitable part of life, giving effect to the free will of

rather than divorce legislation, using empirical research to demonstrate the

psychological complexities of relationship breakdown; prevention of family

breakdown is more rewarding for all parties involved. Recent psychological

perspectives10 and risk factor studies11 can be used as an alternative to the

wishful thinking of policy makers in order to provide an accurate theory of

only by understanding how real relationships come apart can healthier

associated with a pure liberal no-fault approach. The Feminist criticisms of

mediation, voiced by Bottomley,13 O’Donovan14 and Scutt15 will be used to

with appropriate safeguards in place via the court process.

Before concluding, this dissertation will outline why it purports to advance

potential divorce reforms. Drawing on the arguments of all previous chapters,

breakdown of the marriage proved by no-fault facts of mutual consent and

law, as opposed to divorce law, should be used to incorporate an accurate

theory of marital quality and stability.

The Current State of Affairs

Wilson LJ stated the current position as follows: