A good divorce?

Last month, Resolution, in partnership with the Conservative Women’s Organisation, put on a fringe event at the Conservative party conference – ‘Is there such a thing as a good divorce?’.

Kicking off proceedings on behalf of Resolution, I began by highlighting just a handful of the recent high-profile divorces in the media (Brad Pitt and Angelina Jolie; Fatboy Slim and Zöe Ball). I said that the media perception of divorce was of a war of the roses-style gladiatorial battle but that, in fact, with some help from policymakers we could work to change that perception and reality.

I set out my stall as follows:

• the present system of divorce is unnecessarily confrontational and creates unnecessary conflict, the main losers in which are children; but
• there is a better way and we need the help of policy makers to enable people to have a better divorce experience.

Resolution survey – impact on children of divorce

Two years ago, Resolution commissioned a survey of 14-22-year-olds whose parents had separated some time prior, to illustrate the impact of divorce on children. Almost half of break-ups occur when there is at least one child under 16 in the relationship and with around 230,000 people going through divorce every year in England and Wales, that means tens of thousands (around 100,000) of young people see their parents separate.

That takes no account of the unquantified number of cohabiting parents who quietly separate every year.

The results of the survey were marked –

• two-thirds of children whose parents divorced said that the break-up had affected their GCSEs;
• one in eight turned to alcohol or drugs;
• one in three experienced eating disorders; and
• around one in four struggled to complete homework.

I said that, for Resolution and practitioners working at the coalface, these stark findings emphasised the importance of parents managing their split in such a way as to minimise the impact on any children.

Further questioning showed that those children weren’t saying, after time had elapsed, ‘we wish our parents hadn't separated’; they were saying, ‘we wish our parents had managed their split differently’.

So, I posed the question to the assembled fringe audience – if we accept divorce as an inevitability, as we must, how may we do things differently so that children are not affected negatively by parental separation?

Resolution’s Manifesto for Family Law and no-fault divorce

I highlighted that the answers lay within the Resolution Manifesto for Family Law, published three months after those findings. The main changes advocated were as follows:

The first change would make a positive impact on every couple going through divorce each year – allow them to divorce without blame.

At the moment:

• In England and Wales, the only grounds for divorce which do not involve letting a period of separation of at least three years elapse are adultery or unreasonable behaviour;
• Circa two-thirds of divorces cite one of those fault-based grounds;
• Apportioning blame on divorce incites conflict from the get-go; and
• Therefore, we say that we should ditch the blame game.

There have been multiple calls for change. There was draft legislation in 1996 but, ultimately, it was shelved. Richard Bacon MP pursued a Private Member’s Bill in 2015 in relation to no-fault divorce, the contents of which were discussed at meetings Resolution had with him, but ultimately the bill was not given parliamentary time and was filibustered.

Lots of people in eminent positions have called for change, including Baroness Hale and the president of the Family Division, Sir James Munby. Only last month, the Commons Library published a comprehensive research paper on no-fault divorce, giving a detailed overview and summarising the calls for change, as well as the arguments against.

To be clear, those calling for no-fault divorce are not doing so to make divorce easier. My and other practitioners’ experience is that most people reflect long and hard before calling time on their marriage. This is about making the process more dignified and not starting it by having to apportion blame, which inevitably raises the temperature and tends to spill over into discussions about money and children.

If no-fault divorce were a reality, the lowering of the temperature would undoubtedly lessen the amount of time needed to resolve financial matters; reduce legal costs; and most important, protect children from fall-out from divorce.

Other changes to family law

I also outlined to the fringe audience other changes to family law that would also serve to make divorce more civilised.

1. Enshrine a parenting charter into the heart of family law cases so that parents are clear about what their children expect as a result of the separation.

2. Simplify the law around how assets and income are divided on divorce. At the moment, the law is devilishly complicated, the court in England and Wales having broad discretion around how to meet needs on divorce, how long to award spousal maintenance for and in what sum, etc. That makes it difficult for the growing ranks of people representing themselves to know how to resolve matters; even where there is legal advice, it can be difficult to advise definitively what the likely outcome will be in any given case, as 20 different judges could reach 20 different decisions. This year there has been a useful guide produced by a High Court judge to assist litigants in person in understanding the law; another one is in train to encourage consistency of approach among judges. However, the reality is that such changes, whilst well-intentioned, are only an Elastoplast. There needs to be proper consideration of this area and legislative reform.

3. I referred to the fact that there was a lot I could say about the devastating effect of the legal aid cuts three years ago and the impact of those cuts on those wishing to divorce. I told those present that I am a realist and that I know that we cannot reverse the cuts; austerity remains the buzz word. However, Resolution has expressed concern about the as yet unquantified effects elsewhere in the system, e.g. the cost of court hearings/processes that take longer because of the growing number of litigants in person; people who are becoming dependent on state benefits because they do not know how to pursue their financial rights on divorce; and parents (especially fathers) who do not pursue time with their kids because they do not know how to, which in turn can have a negative impact on those children later in life. Under this heading, I highlighted Resolution’s two policy asks: first, a thorough impact assessment of LASPO; and second, a refocusing of the legal aid funds available, to cover an element of legal advice and/or non-court based processes other than mediation. It is about giving people choice as to the services they decide to access.

4. I highlighted the need to try to drive more family cases into mediation and other forms of dispute resolution, whilst recognising that some cases need court time, hence the importance of ensuring that we have a properly funded court system also.

5. Finally, whilst acknowledging that this is more of a minority sport, I indicated that those who enter into pre- and post-nuptial agreements have a right to have them respected. As such, private agreements of that ilk should be put on statutory footing.

In conclusion, I said that whilst, at the moment, most sensible couples do manage a good divorce, there are still too many roadblocks for them to navigate their way around. I said that, with the changes outlined, and especially the introduction of no-fault divorce, to bring us in line with other civilised societies, we would not see a dramatic increase in the divorce rate; but we would see less of fall-out from divorce, which could only be to the advantage of the 100,000 young people who experience parental separation each year.

Comments from the floor

The feedback from those present at the fringe event was almost entirely in favour of the no-fault divorce and other reforms I advocated. Several had been through their own divorce as long as 30 years ago and, recalling the painful process they had been through, expressed surprise that there had been no change to divorce law for four decades.

A magistrate present said that she thought that the judiciary could play a greater role in encouraging mediation – both out of court and judge-led conciliation. One lady explained that she was going through her own divorce, did not have the means for legal representation, was not eligible for legal aid and did not know where to turn – a sadly now all-too-common scenario, which is being plugged only in small measure by lawyers offering pro bono services around the country and the advice guides being published at government’s behest.

The only comment which went against what I advocated was to the effect – having easy divorce will make marriage feel more disposable and will encourage more people cohabiting without the formality of marriage. My answer was to turn that on its head and say, the reality already is that cohabiting couples represent the fastest growing family type in the UK.

Having no-fault divorce will not change that. But the failure of successive governments to provide legal protection for cohabiting couples whose relationship ends through separation or death is causing real hardship and needs to be addressed without further delay.

Jo Edwards is a partner at Forsters