Divorce laws ignore heart of the matter

Divorce law reform may speed up the process, but the emotional costs will be high, says Simone Katzenberg. Simone Katzenberg is a partner at Ross & Craig and author of the series The Seven Stages of Divorce – part four of which is due to be published on 12 November.

The Lord Chancellor, Lord Irvine, has done his utmost to streamline the divorce procedure and implement the “no-fault” divorce. Unfortunately, in doing so, he has failed to address the emotional impact of his reforms and the need for a formal closure to marriage.

If a no-fault divorce goes according to plan, neither party need attend court and all matters can be dealt with through correspondence. But by removing the chance to deal with the fault element, the emotions of a divorcing couple are offered no apparent outlet and both parties are frequently left emotionally stranded.

The no-fault divorce fails to address the link between the emotional and legal elements of divorce. It fails to consider the fact that until both parties have worked through the divorce and are able to let go and move on, it will be difficult to resolve the issues that exist between the couple. The parties may each retain their positions, which may be unrealistically poles apart, or continually move the goal posts thus sabotaging settlements.

In theory it seems sensible to have a system of divorce where blame is attributed to neither party. But in reality people need a way to deal with the breakdown – an excuse, or simply the opportunity to have their say and then hopefully put it behind them.

This cannot be done if the forum for discussion is not available to them, or they feel that they are prohibited from letting the truth (as they see it) be known.

Under the present system, the reason for the breakdown seldom has any bearing on judicial decisions concerning children or finances, but it does offer the so-called aggrieved party an opportunity to divorce the other by reason of his or her unreasonable behaviour.

Cathartic? Perhaps – but it is also essential, if only for the couple involved, that there is an outlet which enables them to get on with the complicated process of disentangling emotionally as well as legally.

While researching my new book, I observed the traditional Jewish divorce ceremony, the Get. It highlighted the positive benefits which can be derived from a formal ceremony to signify the end of a marriage, providing a couple with the opportunity to acknowledge the end and thereby enabling them each to move on.

Yet there is nothing similarly available within the civil process. No one need ever go to court and the decree absolute is posted to the couple sometimes as long as a month after the divorce was finalised. Until the decree is received, a couple will not know that they are divorced, when in fact they have been divorced for a number of weeks.

The reform of divorce law will move further away from providing a couple with the opportunity of closure. So where does it leave the husband and wife facing no-fault divorce proceedings? Will couples be forced to find other ways in which to delay the process, until they are able to move on emotionally? Or will it mean couples are pushed through a “conveyor belt” system of divorce which wraps up the legalities without fuss, but leave the emotional issues unresolved.

Each person is different, each couple is different and each case is different. It is up to family lawyers (in conjunction with the Lord Chancellor and his department) to ensure that the right balance is achieved. Couples should be able to divorce at a comfortable pace and there needs to be a way in which they can deal with the emotional fallout in order to start life afresh.