Professional Documents
Culture Documents
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
1
Contents Page
Table of Cases............................................................................................... 4
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
2
Chapter Four: Divorce Reform......................................................................61
Divorce Law Proposals ................................................................................ 61
Family Law Proposals .................................................................................. 63
Conclusion.....................................................................................................65
Bibliography ................................................................................................. 70
3
Table of Cases
4
Table of Statutes
5
Abstract
In 2001, the Government announced the repeal of the FLA 1996. Many
from the divorce process. However in reality the Act still pursued the same
used no-fault, under the FLA, as a subtle means of achieving the same ends,
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
process over time. If marriage cannot be saved the aim is for the couple to
for the individual or the community. This dissertation forwards the view of
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
the law derives from how accurately it reflects public attitudes. Additionally,
and in view of the FLA failures and the recent Conservative proposals, this
sole legal mechanism for ending dysfunctional relationships. This does not
mean marital quality and stability should not be supported. Other discourses
breakdown and thus may provide family law, as opposed to divorce reform,
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
and family law relying on other disciplines such as sociology, social policy,
Firstly, this dissertation will examine the current law on divorce2 and 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
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
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,
marital quality and stability. Oral History Interviews have been conducted to
identify variables that predict marital breakdown. Thus it will be shown that
relationships be established.12
The final part of this dissertation will give an account of the problems
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
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York 1986)
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
I will conclude that the sole ground for divorce will be by the irretrievable
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
10
Chapter 1: The Need for Reform, Social Perspectives and Liberalism
‘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
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
adultery, and the petitioner finds it intolerable to continue to live with the
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
The only conceivable way for the parties to get a quick divorce, without a
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
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 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,
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
caused by the fault-based Matrimonial Causes Act (MCA). The FLA was
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
stable family life based around the ‘imposition of external rules and State
sanctioned forms of punishment’.31 She attacked the FLA arguing that the
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
process but it still promoted the same ideology throughout the history of
should be supported.34
The failure of the FLA was said to be down to its impracticality. Couples were
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
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
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
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, 362
14
than the ‘world as it is’.38 Arguably this is a plausible conclusion. Divorce
the realities of modern social life’.39 The FLA ignored this by using the slogan
consideration telling the couple how to behave, when in fact all they wanted
Additionally the FLA can also be criticised on the ground that it gives the
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
how divorce law is used by the Government to send the right messages in
38
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, 362
39
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, 362
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
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)
15
Following on from the failure of the FLA, consideration will now be given to
divorce law reform.42 Modernization and individualism have had a clear effect
modern society divorce reform should promote the free will of divorcing
spouses.43 Secondly, there are those who see this increase in individualism
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
promote the moral values of the community but rather facilitate the
42
A Diduck, Law’s Families (Lexis Nexis, London 2003)
43
A Giddens, The Transformation of Intimacy (Polity Press, Cambridge 1992)
44
M. C. Regan Jr., Family Law and the Pursuit of Intimacy (New York University Press, New
York and London 1993)
16
Liberal Theory
the basis that our society is shifting more and more towards individualism
and globalization. For liberals, humans are able to calculate the best means
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
law reform.
For Giddens, the increased awareness and prominence of the self and
marriage was entered into on the basis of romantic love whereas the pure
45
U Beck and E Beck-Gernsheim, The Normal Chaos of Love (Polity Press, Cambridge
1995)
46
A Giddens, The Transformation of Intimacy (Polity Press, Cambridge 1992)
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
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
C Smart, ‘Wishful Thinking and Harmful Tinkering? Sociological Reflections on Family
Policy’ (1997) 26 Jnl Soc. Pol 301, 309
52
C Smart, ‘Wishful Thinking and Harmful Tinkering? Sociological Reflections on Family
Policy’ (1997) 26 Jnl Soc. Pol 301, 319
53
C Smart, ‘Wishful Thinking and Harmful Tinkering? Sociological Reflections on Family
Policy’ (1997) 26 Jnl Soc. Pol 301, 302
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
of rules based on the external authority of the Church or the State.55 We are
create their own identities. Any law that imposes moral judgements ‘may be
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
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
C Smart, ‘Wishful Thinking and Harmful Tinkering? Sociological Reflections on Family
Policy’ (1997) 26 Jnl Soc. Pol 301
19
Chapter Three will reveal how political discourse has created an image of
moral fabric. This is ‘wishful thinking’ in hoping such views will encourage a
Gernsheim and Giddens as the foundation for any divorce law reform ‘wishful
thinking’ can be replaced with a liberal ideology that allows the autonomous
aware of the process itself.61 In other words couples must appreciate and
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
those who are responsible are judged not by their actions but by the level of
divorce is not to attribute blame to the guilty spouse but to ensure that both
60
C Smart, ‘Wishful Thinking and Harmful Tinkering? Sociological Reflections on Family
Policy’ (1997) Jnl Soc. Pol 26 301, 319.
61
H Reece, Divorcing Responsibly (Hart Publishing, Oxford 2003)
62
H Reece, Divorcing Responsibly (Hart Publishing, Oxford 2003) 7.
20
continuing path of reflection and self-discovery. According to Reece the FLA
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
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
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
self’ and ‘authentic self’.64 Only through information meetings and periods of
desires. Allowing for quick and easy divorces will only reflect the momentary
marriage involves ‘the mammoth task of rebuilding the world and the self’.65
63
H Reece, Divorcing Responsibly (Hart Publishing, Oxford 2003) 45.
64
H Reece, Divorcing Responsibly (Hart Publishing, Oxford 2003) 121.
65
H Reece, Divorcing Responsibly (Hart Publishing, Oxford 2003) 122.
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
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
A Critique of Post-Liberalism
Reece believes that the repeal of the FLA was due to inherent tensions in
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
post-liberal theory is inherently flawed then how can it ever form a basis for
66
E Hasson, ‘Setting a standard or reflecting reality? The ‘role’ of divorce law and the case
of the Family Law Act’ (2003) Int. J.L.P.F 17 338, 360.
67
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York 1986)
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
Communitarianism
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
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) 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
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
future of our children’.79 The provisions within the FLA that sought to protect
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
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
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
promoting social goals of saving marriage, reducing the costs of justice and
Regan focuses on the internal aspect of family law that looks to protect
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
81
M. C. Regan Jr., Family Law and the Pursuit of Intimacy (New York University Press, New
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
individualism and rising divorce rates as detrimental to our moral fabric and
fault, delays and the promotion of marriage above all else. A shifting moral
rules to follow, people become more moral than they were before, because
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
divorce reform. Although the theories exist at opposite ends of the divorce
ensure the ‘responsible decision’ is made for the individual or the community.
Neither account for what the spouses want and need from the divorce
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
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
the expression of the spouse’s free will. Divorce is a fact of life, and the law
88
J Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 MLR 467, 468.
89
J Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 MLR 467, 468.
27
Chapter 2: An Accurate Theory of Marital Quality and Stability
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
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
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
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
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
law in England and how policy makers have failed to consider the use of
civilised manner during the entire process; however this neglects the fact that
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
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
makes it clear that the law needs to recognize the variations of divorcing
demonstrate how ineffective legislation has been to date. But will seek to
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
R Clark, ‘Reviewed works: Undercurrents of Divorce by Shelley Day Sclater; Christine
Piper’ (2000) 62 Journal of Marriage and the Family 592
99
S Sclater, Divorce: A Psychosocial Study (Ashgate, Aldershot 1999)
100
R Clark, ‘Reviewed works: Undercurrents of Divorce by Shelley Day Sclater; Christine
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,
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
little use in reading rules out of books, when social life is based on other
and marital satisfaction. Therefore the law must become less concerned
with the formal nature of the relationship and more concerned with how the
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
pilots, argued that family law is too important for the Government to want to
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.
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
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
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
divorce is unnecessary due to the fact that some theories have lost
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
marriage and divorce rather than merely focusing on family problems and
transition from one stage to another defined by the actions of an initiator and
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
A Clarke-Stewart and C Brentano, Divorce Causes and Consequences (Yale University
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
uncoupling.
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
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
However, after the parties have debated the successes and failures of their
inevitable. In the end both parties establish new and independent identities
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
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
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
113
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York
1986)
114
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York
1986) 6.
35
constitute a complete misunderstanding of the psychology behind
relationship breakdown.
divorce law reform. The process of ‘uncoupling’ demonstrates that the law
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
is more at fault than the other. For Vaughan relationship breakdown is ‘so
inherently complex the law should not seek to ask why the relationship broke
were to highlight the steps divorcing parties go through it could help people
115
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York
1986) 4.
116
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York
1986) 79.
117
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York
1986) 1.
36
law should not be entrusted with this role. Its role is to facilitate the end of a
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 key and ‘as the problems of the relationship become more and more
Criticisms of Uncoupling
Vaughan’s work has been criticised for failing to consider the social and
Vaughan’s sample fails to account for diversities based on the length of the
118
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York
1986) 184
119
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York
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
T Arendell, ‘Reviewed Work: Uncoupling: Turning Points in Intimate Relationships by
Diane Vaughan’ (1989) 94 The American Journal of Sociology 919.
37
of intimate relationships vary by gender.122 The strength of Vaughan’s work
family law must account for the discrepancies in the narratives of men and
latter states that the initiator will only reveal their true feelings about the
status. Costs include work, responsibilities and limited amount of choice and
economic perspective. With the emancipation of women from the home, the
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
T Arendell, ‘Reviewed Work: Uncoupling: Turning Points in Intimate Relationships by
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
A Clarke-Stewart and C Brentano, Divorce Causes and Consequences (Yale University
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,
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
research. The law can educate couples most effectively through prospective
and longitudinal studies, which reveal factors that place spouses most at risk
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
our most vulnerable, opening up and sharing everything with our partner
Risk and Prevention strategies reveal that there are a small number of
divorce. Using this information can help raise awareness as to the pitfalls of
risk, and each individual has particular characteristics that place the marriage
128
Ghaidan v Godin-Mendoza [2004] 2 AC 557, 139
129
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York
1986)
130
W K Halford, ‘Best Practice in the Couple Relationship Education’ (2003) 29 Journal of
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.
list the various risk factors due to the fact that numerous surveys have
that consistently place couples most at risk of divorce. These are; couple
interaction, life events, individual characteristics and the cultural and social
have had an affect on marital stability. It has been argued that if spouses are
more likely to stay together than through indirect and aggressive forms of
view negative stressful life events as a shared challenge are more likely to
134 nd
S Brown, Understanding Youth and Crime: Listening to Youth? (2 edn Open University
Press, Maidenhead 2005) 100.
135
W K Halford, ‘Best Practice in the Couple Relationship Education’ (2003) 29 Journal of
Martial and Family Therapy 385, 386.
136
W K Halford, ‘Best Practice in the Couple Relationship Education’ (2003) 29 Journal of
Martial and Family Therapy 385, 387.
41
personality’ exists.137 A personality characterised in terms of high levels 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
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
status produces heightened levels of stress that can affect the ability to
relationships.
137
A Clarke-Stewart and C Brentano, Divorce Causes and Consequences (Yale University
Press, New Haven and London 2006) 47
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
A Clarke-Stewart and C Brentano, Divorce Causes and Consequences (Yale University
Press, New Haven and London 2006)
141
A Clarke-Stewart and C Brentano, Divorce Causes and Consequences (Yale University
Press, New Haven and London 2006)
42
Effective Legal Intervention
Couples may enter into a marriage without fully appreciating the legal
psychological complexities and pitfalls marriage produces. The law can only
approach to family law mentioned in Chapter One. The need for schools,
compulsory education about smoking, alcohol and drug abuse has been
could focus on the factors that are proven, through the use of risk factor
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
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
The law cannot provide all the solutions to marital problems. Social workers,
legalism, but rather it seeks to recognize the ‘autopoietic’ position of the law,
whereby one discipline, the law, adopts the knowledge of other disciplines,
Education (CRE) provides a good example of how the law can be influenced
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
W K Halford, ‘Best Practice in the Couple Relationship Education’ (2003) 29 Journal of
Martial and Family Therapy 385.
44
positive expressions of affection toward one another. This non-legal form of
dogmatic approach to law reform that entrenches couples in the same way
State considers acceptable, whereas the former exists for the benefit of 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
One of the main objections levelled against risk factor research is that it
facts.149 The patterns and correlations that emerge from the studies do not
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
increases the risk of divorce by 41.06% in the former and only 2.94% in the
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
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
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
490
153
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
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
and stability can be achieved through couple relationship education and the
education of young persons still in school, rather than through the mandatory
47
Chapter 3: The Cultural and Political Context of Divorce Reform
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
reducing the cost of divorce on the public purse are again used to justify
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
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
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)
48
political drawbacks of adopting a no-fault liberal approach.
Historically, Conservative party politics promote the moral and social well
as tax breaks for married couples,158 with little consideration of the growing
way that ‘divorce reform discourse’ has been changed to ‘marriage saving
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
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 [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
The Conservatives have not learned their lessons from the failed FLA.
only difference between the two is that the CSJ proposals modify the
unable to achieve its primary goal of saving (saveable) marriages. The pilot
information, and 39% were more, rather than less likely to seek legal
does not overcome its inherent problem. The mandatory slowing down of the
161
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 [2.3.3] pg 70
162
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 [2.3.3] pg 71
163
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 [4.1.2] pg 112
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
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
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
discourse and influences law reforms to the detriment of those individuals the
complete and uncontrollable free for all where being true to ones needs is
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,
Coleridge and the Conservatives call for the ‘reaffirmation of marriage as the
social decline and thus the only way to counteract this is for the State to
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
M Adams, and S Coltrane ‘Framing Divorce Reform: Media, Morality, and the Politics of
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
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 [2.2.3] pg 63
171
Family Holiday Association, ‘Holiday and Families’ HC (2009) <
www.fhaonline.org.uk/.../COUNCIL090616MrJusticeColeridgeSPEECH.pdf> accessed 22
November 2009 pg 9
52
predominance of form over substance’.172 The repeal of the FLA
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
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
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
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
A Barlow and S Duncan, ‘New Labour's Communitarianism, supporting families and the
'rationality mistake': Part II’ (2000) 22 JSWFL 129, 141
176
A Barlow and S Duncan, ‘New Labour's Communitarianism, supporting families and the
'rationality mistake': Part II’ (2000) 22 JSWFL 129, 141
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
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
O’Donovan.181
No-fault legislation shifts the emphasis away from conflict to alternative forms
need to be made for the future’.182 Under the current law there is an
178
M Adams, and S Coltrane ‘Framing Divorce Reform: Media, Morality, and the Politics of
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
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)
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
for both private and publicly funded divorces in order to consider mediation
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
confines disputes, conflicts and problems within the private arena rather than
Feminists argue that insulating the divorce process away from public
183
Family Law Act 1996, s 29
184
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 [4.2.5] pg 123
185
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, 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
Therefore any form of dispute resolution that fails to recognize this will be
ineffective, and could advantage the party having greatest power, which is
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
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
approach is only useful to couples who assert equal levels of power over the
187
Lord McGregor of Durris, Hansard HL vol 525 col 818 (31 January 1991)
188
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, 505
189
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, 505
190
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, 505
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
through mediation rather than in the public domain they inevitably become
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
rather than privatize them through hidden ‘justice’ processes like counseling
or mediation.195
present during the process as they can mitigate any power imbalance
between the parties.196 Empirical research has shown that solicitors take
face negotiation.197 Their role must not be undermined. Formal justice should
193
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 ,512
194
K O’Donovan, Sexual Divisions in Law (Weidenfeld and Nicolson, London 1985) 11
195
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
196
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)
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
society, divorce law discourse lies on the boundary of the public and private
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
In all that has been mentioned hitherto the ‘darker side’ of divorce has not
Report to the Legal Services Commission’ (Legal Services Commission: London 2000) pg
204
198
C Smart, ‘Wishful Thinking and Harmful Tinkering? Sociological Reflections on Family
Policy’ (1997) 26 Jnl Soc. Pol 301,312.
199
A Giddens, The Transformation of Intimacy (Polity Press, Cambridge 1992)
200
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York
1986)
201
P R Amato and S J Rogers, ‘Do attitudes towards divorce affect marital quality’ (1999) 20
Journal of Family Issues 69
202
A Giddens, The Transformation of Intimacy (Polity Press, Cambridge 1992)
58
choice and individual rights.203 This all contributes to the claim that the
bullying, economic deprivation and cruelty. Davis et al. found that 57% of
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
right to privacy and autonomy, should apply to divorce law. However, this
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
A Diduck, Law’s Families (Lexis Nexis, London 2003)
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
60
Chapter 4: Divorce Reform
This dissertation proposes no-fault divorce reform, based solely upon the
right that anger and ambivalence are natural emotions during the divorce
divorce process will increase the divorce rate and have negative economic
evidence to suggest liberal laws are solely responsible for increasing the
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
struck thus giving effect to the autonomy of divorcing spouses but also
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
Sweden, where there is a child or reluctant spouse. If the couple can reach
both parties should reasonably be ready to carry out the legal steps
necessary to divorce and settle all financial matters and child care
209
J Gruber, ‘Is Making Divorce Easier Bad for Children? The Long-Run Implications of
Unilateral Divorce’ (2004) 22 Journal of Labour Economics 799
210
J Gruber, ‘Is Making Divorce Easier Bad for Children? The Long-Run Implications of
Unilateral Divorce’ (2004) 22 Journal of Labour Economics 799
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
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
have altered their internal and external lives to such an extent that they are
marriage cannot be saved and the wishes of both parties must be respected.
214
Children Act 1989
215
Hansard HL vol 525 cols 812-54 (31 January 1991)
63
This dissertation proposes legal intervention at the pre-marriage stage, and
capacity for mutual concern, ability to reflect on our own actions and the level
voluntary. Relationship education would not take the form of the pilot projects
under the FLA which had a persuasive function steering the parties towards
practical aspects such as debt, tax, parenting issues and then delve into the
216
C Clulow, ‘Preventing marriage breakdown: towards a new paradigm’ (1996) 11 Sexual
and Relationship Therapy 343
217
C Clulow, ‘Preventing marriage breakdown: towards a new paradigm’ (1996) 11 Sexual
and Relationship Therapy 343
218
C Clulow, ‘Preventing marriage breakdown: towards a new paradigm’ (1996) 11 Sexual
and Relationship Therapy 343, 348
64
Conclusion
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
norms’.219
divorcing couple to exercise their autonomous nature and make their own
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
P R Amato and S J Rogers, ‘Do attitudes towards divorce affect marital quality’ (1999) 20
Journal of Family Issues 69
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
our changing identity, needs and desires. As Giddens suggests, the ‘self’ in a
respect one party’s control and autonomy should be restricted where the
conducted within the justice system, ensures the rights of both parties,(taking
into account any sexual or other disadvantage) and the welfare of any
not only to criticize existing law but to propose radical change. Uncoupling
224
A Giddens, The Transformation of Intimacy (Polity Press, Cambridge 1992) 58
225
C Smart, ‘Wishful Thinking and Harmful Tinkering? Sociological Reflections on Family
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
D Vaughan, Uncoupling: How and Why Relationships Come Apart (OUP, New York
1986)
229
P R Amato and S J Rogers, ‘Do attitudes towards divorce affect marital quality’ (1999) 20
Journal of Family Issues 69
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
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
married and heterosexual and same sex couples. Statistics suggest the
proportion of married couple families has decreased over the last ten years,
Over the same period the proportion of cohabiting couple families increased
230
A Clarke-Stewart and C Brentano, Divorce Causes and Consequences (Yale University
Press, New Haven and London 2006) 235
231
A Clarke-Stewart and C Brentano, Divorce Causes and Consequences (Yale University
Press, New Haven and London 2006) 236
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
the same reasoning. Family law policy based entirely on marriage leaves the
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
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
A Barlow and S Duncan, ‘New Labour's Communitarianism, supporting families and the
'rationality mistake': Part II’ (2000) 22 JSWFL 129, 141
237
R Deech, ‘Divorce a Disaster?’ [2009] Fam Law 1048
238
R Deech, ‘Divorce a Disaster?’ [2009] Fam Law 1048
239
Family Holiday Association, ‘Holiday and Families’ HC (2009) <
www.fhaonline.org.uk/.../COUNCIL090616MrJusticeColeridgeSPEECH.pdf> accessed 22
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,
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
240
J Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 MLR 467, 468.
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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