Laying the blame

The news that the Lord Chancellor was to finally part company with the “no fault” divorce in January was as inevitable as the arrival of a decree absolute through the letter box. It was also met with the same wildly divergent responses by the parties involved.

As far as the anti-divorce lobby was concerned this was an opportunity to crack open the champagne. But for many of the professionals who work with the emotional fallout of separations – including most family law practitioners – it was a moment for sad reflection on what might have been and where it all went wrong.

The Daily Mail, which had led a crusade against part II of the Family Law Act 1996 (FLA), was only too happy to bid farewell to the “disastrous” and “appaling” legislation. As the paper put it, the FLA would have single-handedly reduced the state of matrimony to “something of less value than a television licence”.

But divorce lawyers have more ambivalent feelings. Withers family law partner Mark Harper believes that it was clear that the law had become “unworkable”. But he says that just because the FLA was a bad law, it does not follow that its heart was not in the right place. “Scrapping the new no-fault divorce law is bad news for divorcing couples. It would reduce unnecessary bitterness and antagonism which exists under the current law by having to make allegations of unreasonable behaviour.”

It also looks likely that the whole movement for the reform of divorce law has ground to a shuddering halt. Harper asks: “Are we really stuck with a 30-year-old law which most people, and certainly practitioners, agree needs to be altered? Is it really 10 years of law reform down the drain?”

Manches family law partner Jane Simpson was a member of the Lord Chancellor's advisory board, set up in 1996 to put the FLA into action. She says: “We will be recommending very strongly, at the very least, that our law of divorce is reformed.” But does she have any confidence that they will be listened to? “None at the moment,” she says.

Of course, there is not a no-fault consensus of feeling among lawyers. “I was thrilled to see the back of it,” cheers matrimonial lawyer Vanessa Lloyd Platt, who also happens to be a columnist (or “relationship doctor”) for the Daily Mail. “If you don't allow people to have their say it will create more frustration down the line,” she says. “Regrettably, human nature being what it is, people do like to assign fault and without it you have this powder keg.” She believes that the bitterness will spill out anyway, either when it comes to dealing with the children or the money (see Lloyd Platt profile, page 35).

But the view that fault is some sort of catharsis receives short shrift from most family lawyers. Simpson believes that she can count on one hand (“probably two fingers”) the number of clients who have said they were glad that the judge found fault with their ex-spouse.

She cites the example of the wife who wants a divorce while her partner is completely shocked, believing that their marriage is solid. For the wife to press on with the break-up, she must allege that the husband is at fault. Simpson says: “In a way it makes a mockery of the law that you have to trump up grounds of unreasonable behaviour or adultery.”

It was the Law Commission that set the wheels in motion in 1990, when it recommended the introduction of no fault divorces. The call was taken up enthusiastically by the then Lord Chancellor, Lord Mackay of Clashfern. Under his plans, couples who had not lived apart would no longer have to make allegations of adultery or bad behaviour. He also proposed a cooling-off period of one year to temper the acrimony of break-ups. This would have marked the end of the quickie divorce that can be obtained within six months by citing fault.

But the legislation got off to an inauspicious start. John Major's Government was hanging by a thread-like majority and it was inevitable that reforms as controversial as the FLA faced a rocky ride. Many MPs, in particular pro-family Tories, objected to the speed of new divorces.

Harper says: “It became a political football and it was a question of what the Government felt it could get through Parliament and, of course, politicians look at it in a simplistic way.”

A hefty Tory rebellion meant that the cooling-off period was extended to 18 months for couples with children. In the legislation's first incarnation there was also no mention of information meetings or compulsory mediation that was to bedevil the act later on. These extra requirements were added as a sop to those who felt that divorce was being made easier.

The legislation was changing beyond all recognition. According to Peter Watson-Lee, chair of the Law Society's family law committee, the bill was already dead in the water by the time it went through Parliament. “It would have just been impossible for the clients to have found their way through all the hoops,” he says. “It would have been a nightmare and the family law committee felt that it had become unworkable and should be withdrawn.”

Paul Boateng, who was legal affairs spokesman for the Home Office, memorably damned the act as “a dog's breakfast”.

Pilots were rolled out for the information meetings between June 1997 and March 1999. The object of the exercise was to “save the savable marriages” and promote mediation and other services, such as counselling. But, according to research, only 7 per cent of attendees went on to mediation and, most tellingly, almost 40 per cent said that the meetings made them more likely to seek legal advice.

A sceptical Watson-Lee ran the South Coast pilot. He says: “They were run with a secret agenda, although it was not a secret by the time they finished. The Lord Chancellor was hoping to use them to divert people from solicitors to mediators.” Research showed that it could cost £40-50m to have information meetings for everyone who gets divorced and that money could be better spent on marriage support.

The meetings followed a number of models, from CD-Roms to face-to-face encounters and even group meetings. The compulsory mediation sessions for those couples on legal aid are still in operation. However, it is widely perceived by practitioners not to have been a great success. Rosemary Carter, chairman of the Solicitors Family Law Association (SFLA) and a trained mediator, is an advocate of mediation. But she says: “It was never going to be right for everyone and [the SFLA] doubted that it was even going to be right for the majority of divorcing couples.”

As Carter points out, there are all sorts of reasons why people are reluctant to mediate. “Very often there is a pure power imbalance, where somebody has got all the information or holds the purse strings,” she says. For example, she says that mediation is never going to work in domestic abuse situations.

Now that the legislation has been consigned to history, lawyers are considering its legacy. According to Carter, there have been some “positive spin-offs”. The SFLA is putting together a code of practice in an attempt to reduce the bitterness of a separation.

“Even if we had legislation bringing in the no-fault divorce, that can only go so far,” Carter says. “There's a huge amount that we as professionals can do to ease the way.” The code will commit practitioners to a non-confrontational approach. There is also a Law Society and SFLA best-practice protocol echoing the more conciliatory attitude towards family matters.

In addition, the SFLA has been pressing for the courts not to insist upon the naming of the co-respondent in divorce proceedings. “All that does is ratchet up the emotional content when one is dealing with a divorce on the basis of unreasonable behaviour,” Carter adds.

Charles Russell family partner Sarah Anticoni regrets that other promising reforms were dumped along with the no-fault divorce. For example, she mentions that provisions for interim lump sums would have allowed greater flexibility of orders made by the courts. The act would also have given the courts the power to hold off awarding a decree absolute if a ghet, a Jewish Bill of divorce, had not been given in a divorce.

But mainly Anticoni regrets the loss of the no-fault divorce. She says: “You spend years and years telling clients that this is the last time people are going to have to be saying silly things about each other in writing that nobody will ever read.” For her, the lack of action is frustrating. n