The Government is set to tweak the law of divorce - but what lawyers want is wholesale reform. Grania Langdon-Down asks leading practitioners to draw up their wish-list.


When the government revealed last month that it was considering removing a divorce petitioner’s right to name the ‘other woman’ or ‘other man’ in divorce proceedings, family lawyers gave a whoop of delight.



Most lawyers were pleased that an aspect of the current rules that causes so much acrimony – with little discernable benefit other than indulging a desire to point the finger of blame – is finally to be consigned to the dustbin.



The move forms part of a review of the Family Procedure Rules, designed to create a single unified code of practice, and simplify some of the language used (see (2006) Gazette, 7 September, 3). But what many family lawyers – and judges – really crave is a far more fundamental rewrite of the law of divorce.



So if they could start again with a blank slate, what divorce laws would they bring in?



Lord Justice Thorpe, deputy head of family justice, is one judge who would like to see an overhaul of the system. Speaking to the Gazette, he says: ‘We are stuck with a divorce law that was enacted in the 1960s, when there was a completely different moral, ethical and social climate. It represented a compromise between the progressives and the reactionaries. How are we still operating it more than a generation later?



‘What Parliament legislated in the Divorce Reform Act 1969 was a system where irretrievable breakdown required proof of fault and a formal hearing in front of a judge. Now we have a quasi-judicial process. It is no more complex than applying for a passport or a shotgun certificate and, as long as you fill in the form correctly, you get your divorce. It is no longer a fault system because people know it is not going to be rigorously scrutinised, and it is often fudged.’



Lord Justice Thorpe says he supported the wholesale reform proposed in the 1990s. ‘This sensibly moved to no-fault divorce, but put the responsibility for the consequences of the divorce in terms of arrangements for children and dividing assets upfront as a necessary preliminary.’



Intense opposition to those reforms – on the grounds that they would undermine marriage by making divorce too easy – meant that part of the Family Law Act 1996 was eventually jettisoned as unworkable. A decade on, the government has avoided returning to the issue because it is so politically explosive.



This has left it to the courts to develop the law. Recent headlines have focused on big-money cases. Lord Justice Thorpe says: ‘I think judges have radically changed the application of the statutory provisions and have created considerable uncertainty so that it is more difficult to predict the outcome of big-money cases.



‘I don’t think it is for judges to introduce a virtual equality presumption when dividing assets. You could say that the effect of White (White v White (2001) 1 AC 596), which introduced the “yardstick of equality”, was to introduce a sort of community of property regime. However, my position has always been that it is for Parliament to reform the law of ancillary relief.’



One of the results of high-profile divorce cases has been an increase in pre-nuptial agreements, something that he sees as no bad thing. Lord Justice Thorpe says: ‘There is a strong case for giving pre-nups some statutory force to encourage adult autonomy. The more unpredictable the outcome of contested cases, the stronger becomes the case for allowing spouses to make their own arrangements.’



As well as this, the judge would like to see a divorce reform bill that required separating couples to sort out a parenting plan and sensible division of assets before seeking a ‘no-fault’ divorce; and introduced a presumption that mediation should be the first port of call before a solicitor.



Family lawyers have a similar wish-list if the law of divorce were to be given the government’s full attention, though not all agree that ‘blame’ should go completely from the process.



David Emmerson, chairman of Resolution’s legal aid committee and a partner at east London firm Edwards Duthie, says: ‘Divorce ought to be as simple a process as getting married. It should be no fault and no details.



‘It is wise to have a period of reflection so people don’t rush off in a fit of pique and get divorced. But where a marriage or civil partnership has broken down, it should be a straightforward administrative process which doesn’t involve court time or lawyers, who would only become involved in giving advice and guidance on dealing with difficult childcare and financial arrangements.’



Christina Blacklaws, chairwoman of the Law Society’s family law committee, would also make the technical process of divorce as simple as possible. ‘For individuals going through the ghastly and emotional process of divorce – and most particularly for their children – I would like to see the process being regarded as completely normal. There needs to be a recognition by society that it happens to almost 50% of people who get married, and it must be in everyone’s best interests to make it more amicable and less contentious.’



Marilyn Stowe, head of the private client and family law unit at Yorkshire firm Grahame Stowe Bateson, suggests that having a divorce regime that encourages blame is ‘anachronistic’. Ms Stowe, formerly chief assessor of the Law Society’s family law panel, says: ‘No one gets divorced without a great deal of soul-searching and distress, so I don’t understand why it is necessary to look backwards. I think what is happening is that the courts are encouraging people to keep any allegations about behaviour as anodyne as possible, because everyone recognises that putting things down on the petition simply inflames the recipient.



‘I am very sorry that the government isn’t strong enough to reform divorce law in a sensible way. The 1996 attempt was an abject failure because it was such an unworkable hotchpotch, but this issue remains a political hot potato.’



James Pirrie, a partner with London firm Family Law in Partnership, thinks he knows why the much-needed reform has not yet been tackled. ‘It would mean primary legislation, and the Daily Mail would never allow it,’ he groans.



Leading family silk James Turner QC, of London set 1 King’s Bench Walk, argues that there is already effectively no-fault divorce. ‘There is one ground for divorce – irretrievable breakdown evidenced by certain factual situations. You can just put on the petition “he argued with me about the colour of the wallpaper” and that will usually be enough to get through. So I am not sure no-fault divorce would make any difference in practice, though it may help lower the emotional temperature because litigants do get aerated when they see the other side has put in a petition based on adultery.’



However, other family lawyers take the view that, psychologically, some people need to apportion blame. Jane Craig, a partner at London firm Manches, agrees it is ‘ridiculous that two adults, who have sadly come to the conclusion that their marriage is over, should either have to allege adultery or live apart for two years. Being able to divorce by mutual consent would not undermine marriage’.



She continues: ‘However, I wouldn’t have “no fault” as the only basis of divorce. I have now come to the conclusion that sometimes people feel so strongly that the reason for the breakdown has been the other’s serial unfaithfulness or violence, and they want it ended on that basis. Tidying it away in one place just means it comes out in another.’



For Julian Lipson, a partner with City law firm Withers’ private client group, the issue of no-fault divorce is a ‘sideshow’ to clients. ‘They are more concerned about how much money they are going to get or how much they are going to have to pay.



‘However, ironically, the existing arrangements do give an avenue for anger to be vented. If one side feels very let down that their spouse cheated on them, the ability to have a divorce based on adultery can take the heat out of the overall situation in a way which doesn’t impact terribly badly on anyone.’



Darren Matthews, an associate at Liverpool-based Gregory Abrams Davidson, represents mainly low-income clients, 90% of whom are legally aided. He says: ‘You can’t have Britney Spears-type divorces where you get married one day and go off to court the next. A no-fault divorce after two years’ separation with consent or five years without is the time to draw a line underneath a relationship that has broken down. But you can’t legislate for every eventuality and I think there still need to be some clear facts to rely on, otherwise you just open the floodgates.



‘About 80% of petitions I do are on grounds of unreasonable behaviour. I explain to clients that this can range from physical violence to an irritating habit but a lot of my clients want to be the petitioner so they can say to family and friends “I divorced him or her”.’

The most painful issue for divorcing couples can be resolving arrangements for their children. Nine out of ten couples agree residence and contact between themselves, but the remaining 10% fight it out in the courts.



District Judge Nicholas Crichton, based at the Inner London Family Proceedings Court, sees the worst cases. If he could introduce a reform, it would be to require parents to make a serious attempt at mediation before being allowed access to the courts.



‘There are people who are still absolutely wedded to the idea that mediation cannot be compulsory or it loses its core element that people must want to do it. I take a more controlling view that the courts are not the perfect place to resolve these issues,’ he says.



However, he says there is a ‘kind of despair’ to his words. ‘The government, whatever its fine words, has decimated the social services, has decimated CAFCASS (the Children and Family Court Advisory and Support Service) and now appears to be decimating legal aid so the lawyers who do such a terrific job in this court are saying they will not be doing publicly funded cases after next April, when the Carter reforms kick in.



‘What then? We will have these troubled parents and, in the background, these even more troubled children, without the skills or experience of the people who help us resolve the issues. It will go into meltdown in no time and so will the court system.’



Early intervention would also be at the top of Ms Craig’s reform priorities. ‘Mediation isn’t a panacea and sometimes people need to get involved in the court process to get things sorted out.



‘However, I would have mandatory education for parents on the effect on children of marriage break-up and how important it is for them to have a good relationship with both parents, if it is safe for them to do so. A lot more money should also be front-loaded into therapeutic services. People can be so angry and frightened that they lose their ability to put their children first.’



She says she would also put more specialist judges and court time on her wish-list: ‘The delays in getting hearings in private law and money cases are disgraceful.’



When it comes to financial arrangements, family lawyers prefer the current discretionary basis for dividing assets rather than a formulaic 50/50 split. However, Resolution chairman Andrew Greensmith is concerned that concepts like fairness are being left to the courts to decide in the big-money cases. ‘It is wrong that people have to fund privately the interpretation of law in family proceedings. And because it is only people in big-money cases that can afford it, we end up with a distorted picture which we then have to apply to Mr and Mrs Bloggs.’



For Mr Lipson, ancillary relief needs ‘more clarity and honesty’. He says: ‘We have, in effect, a presumption of equal division, particularly of assets obtained during the marriage. But if it is the situation that, through the back door, we have got a regime of community of property, then that should be made clear.’



Having a discretionary system provides a ‘bespoke solution’ to individual cases but it comes at a price, says barrister Mr Turner, who represented Pamela White and Alan Miller in their high-value divorces. ‘You get greater justice but it is at the expense of knowing in advance how to advise clients with any clarity.’



For Mr Pirrie, a pioneer of collaborative law, ‘the fact that no one knows what the law is may not be the end of the world’. He explains: ‘If the legal system isn’t delivering the answer, it will encourage people to turn to alternative methods of dispute resolution which allow their own ethics and values to be given a voice.’



Grania Langdon-Down is a freelance journalist