Benjamin Stowe - A Socio-Legal Study of Divorce and Family Law in England and Wales

Name: Benjamin Stowe

Dissertation Supervisor: Norma Martin Clement

Student ID: 200245794

Word Count: 12,248

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 Divorce Law Reform?

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Contents

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Table of Cases............................................................................................... 4 Table of Statutes ............................................................................................ 5 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 Chapter 2: An Accurate Theory of Marital Quality and Stability....................28 A Psycho-Social Study of Divorce ............................................................... 29 Functionalism and Divorce........................................................................... 30 Divorce: A process over time ....................................................................... 32 Psychological Theories of Marital Breakdown...............................................33 The Uncoupling Process .............................................................................. 33 The Stages of Relationship Breakdown ....................................................... 34 Divorce is a Last Resort................................................................................35 How Relationships Breakdown......................................................................36 Uncoupling is Avoidable................................................................................37 Criticisms of Uncoupling................................................................................37 Exchange Theory and Divorce ..................................................................... 38 Incorporating Theory into Family Law .......................................................... 39 Risk Factor Analysis .................................................................................... 40 Effective Legal Intervention...........................................................................43 Non-Legal Responses to Marital Breakdown ............................................... 44 Criticisms of Risk Factor Analysis ................................................................ 45 Conclusion.....................................................................................................46 Chapter 3: Cultural and Political Context of Divorce Reform........................48 Center for Social Justice (CSJ): Conservative Divorce Reform....................49 The FLA all over again..................................................................................50 Political Responses to Marital Breakdown....................................................52 Sending the Right Message ......................................................................... 53 The Privatization of Divorce and the Feminist Critique of Mediation ............ 54 Privatization of Divorce..................................................................................56 The ‘Darker Side’ of Divorce ........................................................................ 58 Conclusion: Striking a Balance .................................................................... 59 2

Chapter Four: Divorce Reform......................................................................61 Divorce Law Proposals ................................................................................ 61 Family Law Proposals .................................................................................. 63 Conclusion.....................................................................................................65 Bibliography ................................................................................................. 70

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Table of Cases

Fitzpatrick v Sterling Housing Association [1998] 1 FLR 6............................31 Ghaidan v Godin-Mendoza [2004] 2 AC 557................................................40 Re L (A Child) (Contact: Domestic Violence) [2000] 2 FCR 404...................44 Smith v Smith [2009] EWCA Civ 1297..........................................................11

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Table of Statutes

Children Act 1989..........................................................................................62 Divorce and Matrimonial Causes Act 1857...................................................13 Family Law (Scotland) Act 2006....................................................................61 Family Law Act 1996..................................................................8, 13,14,24,54 Matrimonial Causes Act 1973.......................................................................11

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Abstract

In 2001, the Government announced the repeal of the FLA 1996. Many commentators saw the Act as revolutionary. It removed matrimonial fault from the divorce process. However in reality the Act still pursued the same aim as all previous pieces of divorce legislation. It explicitly declared its support for marriage, and imposed a framework of mechanisms designed to keep couples together. In the face of individualism and society’s growing reluctance to embrace life-long committed relationships the Government used no-fault, under the FLA, as a subtle means of achieving the same ends, namely controlling behaviour in order to save marriage. Following on from the FLA failure, this dissertation examines the competing constructions of 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 shared moral values of the community, impose responsibilities and restrain the pursuit of individual desires. By contrast, the failed FLA, according to Reece, reveals a new Post-Liberal conception of divorce as an educative process over time. If marriage cannot be saved the aim is for the couple to divorce responsibly by considering the consequences of their actions, before pursing their own self-interests. Neither approach is a suitable theoretical framework for divorce reform as they both advocate in favour of periods of marital entrenchment in order to ensure the ‘responsible decision’ is made for the individual or the community. This dissertation forwards the view of Libertarians who believe that within the private sphere of intimate relationships the law should allow individuals to express their own identity

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without external constraints. The law should not be used as a means of controlling how people actually behave in their relationships. The power 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 dissertation also goes on to suggest that a dramatic shift in policy is needed in order for workable divorce reform to be implemented. Divorce law is the sole legal mechanism for ending dysfunctional relationships. This does not mean marital quality and stability should not be supported. Other discourses such as psychology, sociology and economics reveal how relationships breakdown and thus may provide family law, as opposed to divorce reform, with an opportunity to strengthen relationships based on this information. 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.

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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 connection between social context and legal doctrine. By considering how individuals regulate their own family breakdown, rather than relying on normative statements about the correct forms of behaviour, more suitable divorce reforms emerge.1 This dissertation is a socio-legal study of divorce and family law relying on other disciplines such as sociology, social policy, economics, philosophy and psychology.

Firstly, this dissertation will examine the current law on divorce2 and the unsuccessful implementation of the FLA. It will make reference to 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 reform declare its aim to be as such.4 I aim to demonstrate that divorce reform should not advance a marriage saving agenda; rather it should promote a Libertarian, as opposed to Communitarian or Post-Liberal ideal. The debate will be based on the arguments proposed by Giddens5, BeckGernsheim6, Etzioni7, Regan8 and Reece.9 It will conclude that the role of

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A Diduck, Law’s Families (Lexis Nexis, London 2003) 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. 2

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divorce law is to embrace modern social norms by accepting relationship breakdown as an inevitable part of life, giving effect to the free will of 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, rather than divorce legislation, using empirical research to demonstrate the psychological complexities of relationship breakdown; prevention of family breakdown is more rewarding for all parties involved. Recent psychological perspectives10 and risk factor studies11 can be used as an alternative to the wishful thinking of policy makers in order to provide an accurate theory of marital quality and stability. Oral History Interviews have been conducted to identify variables that predict marital breakdown. Thus it will be shown that only by understanding how real relationships come apart can healthier relationships be established.12

The final part of this dissertation will give an account of the problems associated with a pure liberal no-fault approach. The Feminist criticisms of mediation, voiced by Bottomley,13 O’Donovan14 and Scutt15 will be used to

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H Reece, Divorcing Responsibly (Hart Publishing, Oxford 2003) 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 10

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argue that divorce reform should promote a liberal individualist approach but with appropriate safeguards in place via the court process.

Before concluding, this dissertation will outline why it purports to advance potential divorce reforms. Drawing on the arguments of all previous chapters, I will conclude that the sole ground for divorce will be by the irretrievable breakdown of the marriage proved by no-fault facts of mutual consent and 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 law, as opposed to divorce law, should be used to incorporate an accurate theory of marital quality and stability.

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Chapter 1: The Need for Reform, Social Perspectives and Liberalism

The Current State of Affairs

Wilson LJ stated the current position as follows: ‘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 five ancient bases of divorce’.16

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 irretrievable breakdown of the marriage17 proved by one of five facts: First, adultery, and the petitioner finds it intolerable to continue to live with the respondent.18 Second, the respondent’s behaviour is so unreasonable that the petitioner cannot reasonably be expected to live with the respondent.19 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 Fifth, the parties have been separated for five years.22

The only conceivable way for the parties to get a quick divorce, without a prolonged period of marital entrenchment, is through alleging misconduct in the form of adultery or unreasonable behaviour. 75% of all divorces are

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Smith v Smith [2009] EWCA Civ 1297 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) 17

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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 lay down the theoretical and conceptual foundations for an understanding of 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 Family Law Act 1996

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, in particular the financial problems and difficulties with child-care arrangements.25 This dissertation supports such a modern, progressive and forward-looking premise. However, the means used in the Act to achieve these objectives are inappropriate.

The FLA introduced information meetings during a compulsory 3-month period after which the couple were free to decide if the marriage had broken

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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)

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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 irretrievably broken down.27 The process was intended to promote cooperation between spouses as opposed to perceived anger and bitterness caused by the fault-based Matrimonial Causes Act (MCA). The FLA was described as a ‘revolutionary mechanism’ for obtaining a divorce.28 The FLA was, unquestionably revolutionary as it removed fault from the divorce 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 of irretrievable breakdown, through Parliament it gained strong moral overtones in the form of marriage saving.30 Those such as Baroness Young sought to promote the importance of marriage as being at the centre of stable family life based around the ‘imposition of external rules and State sanctioned forms of punishment’.31 She attacked the FLA arguing that the ‘State is actively discouraging any concept of lifelong commitment in marriage’.32 Consequently the FLA developed a marriage saving agenda in order to control the behaviour of the couple to stay together with divorce as a

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Family Law Act 1996 s 6. 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) 27

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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 have been revolutionary in removing matrimonial fault from the divorce process but it still promoted the same ideology throughout the history of divorce law reform; namely marriages ‘which have a chance of survival’ should be supported.34

The Ill-fated FLA

The failure of the FLA was said to be down to its impracticality. Couples were forced into programmes designed to save marriages and reduce conflict. 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 attended the meeting’.35 The Lord Chancellors department ‘expressed disappointment in the outcomes of the findings’.36 Some Commentators, 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 not in a position to regulate behaviour within the private sphere of intimate relationships in order to create the world, ‘as they would like it to be’, rather

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Family Law Act 1996, s 1 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 34

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than the ‘world as it is’.38 Arguably this is a plausible conclusion. Divorce must be seen as a fact of life. It should neither be encouraged nor discouraged. The primary role of divorce law is to ‘unambiguously embrace the realities of modern social life’.39 The FLA ignored this by using the slogan of marriage saving to entrench couples in a process of marital reflection and consideration telling the couple how to behave, when in fact all they wanted was to end the marriage as quickly as possible.

Additionally the FLA can also be criticised on the ground that it gives the impression of empowerment to spouses, deciding for themselves whether 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 order for spouses to be more responsible, but it also sought to control behaviour through the illusion of empowerment.41 I will make reference to how divorce law is used by the Government to send the right messages in order to subtly influence how couples behave.

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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), Crosscurrents: 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), Crosscurrents: family law and policy in the United States and England (OUP, Oxford 2000)

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Following on from the failure of the FLA, consideration will now be given to the influence of social theory on divorce in order to determine what role divorce law should be seeking to achieve.

The Role of Divorce Law

Social theory has become increasingly important when looking at suitable divorce law reform.42 Modernization and individualism have had a clear effect on intimate relationships and the stability of marriages. Theoretically, two schools of thought have emerged. Firstly, Libertarians argue that within a modern society divorce reform should promote the free will of divorcing spouses.43 Secondly, there are those who see this increase in individualism as a threat, and as a result advance a Communitarian message in claiming 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 marriage. Divorce law should be morally neutral; it should not seek to promote the moral values of the community but rather facilitate the expression of the spouse’s free will.

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A Diduck, Law’s Families (Lexis Nexis, London 2003) 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) 43

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Liberal Theory

Beck-Gernsheim45 and Giddens46 advocate in favour of a liberal ideology on the basis that our society is shifting more and more towards individualism and globalization. For liberals, humans are able to calculate the best means to achieve a desired end or having the capacity to realize rational principals. It is the individuals’ capacity for reason that facilitates the exercise of 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 their own fulfillment.47 Unconstrained free will should be reflected in divorce law reform.

For Giddens, the increased awareness and prominence of the self and individualism have had a profound effect on intimate relationships. According to Giddens contemporary marriage is far different from earlier marriages that were based on a more ‘institutional grounded form’.48 The traditional marriage was entered into on the basis of romantic love whereas the pure relationship, which has emerged in our modern society, survives only

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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

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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 more marriages breakdown.50 The idea of the self in particular impacts on our decisions within intimate relationships. The self is a relative concept, in that it is dependant on its surrounding circumstances always subject to change. Therefore individuals within a modern society constantly seek to improve, redefine or remake themselves. Marriages as a result will suffer. Humans, in particular women, are ‘agents of change’. ‘Men have largely remained stuck within a 19th Century framework of masculinity whilst womenLhave excelled in the modern realm of intimacy’.51 The economic independency of women, the Welfare State and privatisation polices all emphasise individualism on a private level.52

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

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A Giddens, The Transformation of Intimacy (Polity Press, Cambridge 1992) 58 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) 50

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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 by allowing spouses to exercise their autonomous nature and make free choices when seeking a divorce.

Beck-Gernsheim provides further evidence of the need for a liberal approach to family matters suggesting that there no longer exists a pre-determined set of rules based on the external authority of the Church or the State.55 We are no longer controlled by shared community values; instead we have our own ‘biography’.56 Therefore individuals within a post-modern age are free to create their own identities. Any law that imposes moral judgements ‘may be at best inappropriate and at worst morally destructive’.57

Both Giddens and Beck-Gernsheim emphasise the ‘rapidity of change’ in 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 no longer an institution but a relationship.59 This relationship should be able to break down with minimum interference so as to give effect to the mentalities of both parties.

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A Diduck, Laws Families (Lexis Nexis, London 2003) 7. 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 56

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Chapter Three will reveal how political discourse has created an image of modern society in decline and the rise of individualism as a threat to our moral fabric. This is ‘wishful thinking’ in hoping such views will encourage a return to traditional family values.60 If we accept the theories of BeckGernsheim and Giddens as the foundation for any divorce law reform ‘wishful thinking’ can be replaced with a liberal ideology that allows the autonomous free-willed individual to make their own marital choices.

Post Liberalism and Divorcing Responsibly

Reece uses the theories of Giddens and Beck-Gernsheim to advocate in favour of post-liberal divorce reforms that look at the concept of ‘divorcing responsibly’; those who participate in the divorce process must be fully aware of the process itself.61 In other words couples must appreciate and contemplate the decision to divorce, anticipate the consequences and be 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 legislation to date’,62 embracing the post-liberal ideology in ensuring that those who are responsible are judged not by their actions but by the level of thought about the consequences of their actions. Therefore, the role of divorce is not to attribute blame to the guilty spouse but to ensure that both parties have fully contemplated the decision to divorce.

For Reece,

individuals within intimate relationships are agents embarking on a

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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.

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continuing path of reflection and self-discovery. According to Reece the FLA reflects this by introducing information meetings alongside periods of 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 personal growth of the individual.63 Reece draws on the work of Giddens by 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 the transition of spouses who are continually on the path of self-discovery by allowing divorce but only after a prolonged period of reflection. According to 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 true authentic self can only be achieved through divorce.

For Reece, the liberal conception of allowing divorce en masse in order to facilitate the expression of a spouse’s free will is unsustainable. When a person seeks to exercise their autonomous nature there exists a ‘momentary self’ and ‘authentic self’.64 Only through information meetings and periods of reflection and consideration can we understand what the authentic self desires. Allowing for quick and easy divorces will only reflect the momentary self, which is not a true or genuine expression. Moreover, breakdown of the marriage involves ‘the mammoth task of rebuilding the world and the self’.65

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H Reece, Divorcing Responsibly (Hart Publishing, Oxford 2003) 45. H Reece, Divorcing Responsibly (Hart Publishing, Oxford 2003) 121. 65 H Reece, Divorcing Responsibly (Hart Publishing, Oxford 2003) 122. 64

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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 contemplation of the act itself and its consequences cannot be right. 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 but during the process of ‘uncoupling’.67

A Critique of Post-Liberalism

Reece believes that the repeal of the FLA was due to inherent tensions in post-liberal theory, namely an illusory concept of autonomy and a concept of responsibility that ‘extends infinitely and is impossible to define’68 due to the 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 to the inherent tensions within post-liberal theory. It begs the question; if post-liberal theory is inherently flawed then how can it ever form a basis for

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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.

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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 divorce is granted’74. Arguably, this level of control cannot be reconciled with the post-liberal concept of self-discovery and reflection but a form of marital entrenchment that prevents couples from moving on. Commentators such as Eekelaar claim that the slogan of divorcing responsibly is not indicative of a post-liberal ideology but is nothing more than a ‘Communitarian reaction’75 allowing for intensive State control to produce socially desirable outcomes.

Communitarianism

Communitarians have argued that in order to discover our individual identity we need to exist within a communal context as opposed to a liberal state of free will and self-discovery. In Etzioni’s ‘The Spirit of the Community’76, he argues that family law should seek to pursue a Communitarian goal by

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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), Crosscurrents: 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).

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shifting the emphasis away from individualism towards the well being of others. In relation to divorce law Etzioni advocates ‘waiting periods prior to marriage’ and ‘delays on divorce’ to enable the couple to reflect on their decisions and the consequences of their actions on all parties involved.77 Although similar to Reece’s Post-Liberalism, Etzioni advocates in favour 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 supporters in the Parliamentary debates leading up to the introduction of the FLA reforms.78 Lord Mishcon argued, ‘Lthe wholesale breakdown of marriage in our country is a serious threat to the fabric of our societyLandL is a grave threat to the mental, physical, educational and indeed financial future of our children’.79 The provisions within the FLA that sought to protect marriage and guard against divorce were justified on Communitarian grounds, namely divorce unsettles children, it represents a risk to their 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 marriage rather than pursue their own selfish desires.

Communitarianism, like Post-Liberalism, is subject to the same criticism. Delays in order to save marriages are nothing more than a form of marital

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J Eekelaar, ‘Family Law: The Communitarian’ (2001) 21 OJLS 181. 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) 78

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entrenchment that has already been proved unsuccessful through the failed information meeting pilots. In believing that such forms of entrenchment will 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 Government, is ‘wishful thinking’. Familial and societal responsibilities should not dominate to such an extent that they are of paramount consideration during the process of divorce. The process should dissolve a dysfunctional relationship, responding to the needs of a divorcing couple rather than promoting social goals of saving marriage, reducing the costs of justice and safeguarding children from the ills of single parenthood.

Regan also starts with a central Communitarian message: In order to discover our individual identity we need to exist within a communal context.81 Regan focuses on the internal aspect of family law that looks to protect intimate relationships by subordinating individual desires and placing special value on ‘mutual trust, confidence and commitment’ of both parties.82 For 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 be present in divorce law because it can be used as a means of deterrence. It sends a message to married or soon to be married couples so to correct marital behaviour and the consequences of breaking those commitments.

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 In accordance with the views of Pearson we live in a world of ‘moral dodoism’ whereby our society is determined by our inability to adapt to the changing environment and social alterations.85 The Communitarians and fault lawyers, without any empirical evidence, view the increase in individualism and rising divorce rates as detrimental to our moral fabric and as a result, promote traditional forms of divorce law based around moral fault, delays and the promotion of marriage above all else. A shifting moral focus does not mean an abandonment of morals altogether.86 In fact, within a modern progressive society in which there are a lack of straightforward rules to follow, people become more moral than they were before, because there is an ‘authorship and actorship agency’ involved in the moral decisions 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

Both Post-Liberalism and Communitarianism are unsuitable bases for divorce reform. Although the theories exist at opposite ends of the divorce spectrum they both advocate periods of marital entrenchment in order to ensure the ‘responsible decision’ is made for the individual or the community. Neither account for what the spouses want and need from the divorce process, instead advancing a marriage saving premise to reform people’s 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 discourse.88 Family law is characterized not only by rules, procedures and 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 that demand divorce reform to promote responsibility or the needs of the community. Divorce reform must be flexible in order to respond to the lived realties of divorcing spouses. Therefore the role of divorce law is to facilitate the expression of the spouse’s free will. Divorce is a fact of life, and the law must embrace this by ending a dysfunctional relationship on the basis of liberal individualist laws without unnecessary restrictions.

88 89

J Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 MLR 467, 468. J Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 MLR 467, 468.

27

Chapter 2: An Accurate Theory of Marital Quality and Stability

No new legislation on divorce, in this country, has been successfully implemented since 1973, even though there has been a mass of 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 reflection and consideration supplemented by information meetings. Both tell 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 effective process that ends the dysfunctional relationship.

Divorce should be granted on the sole basis of irretrievable breakdown 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 family law. Research indicates that individuals from failed marriages experience greater rates of psychopathology, physical illness, suicide and

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 Helping marriages survive has important implications for society as a whole 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 relationships without restricting the freedom of divorcing spouses.

A Psycho-Social Study of Divorce

Sclater is unique in ‘challenging the conventional discourse’94 about family law in England and how policy makers have failed to consider the use of human psychology. The FLA, in formulating a law based around cooperation, reflection and consideration assumes that couples will act in a civilised manner during the entire process; however this neglects the fact that passion, emotion and conflict are necessary aspects of a divorce. Sclater 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 as to how the FLA can ever be considered effective if it removes the 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 a harmonious divorce process simply ignored the fact of marital breakdown.97

Although

Sclater’s

work

is

primarily

associated

with

condemning divorce law for ignoring the importance of psychology, when framing divorce reform it fails to advance a suitable alternative.98 Sclater makes it clear that the law needs to recognize the variations of divorcing spouse’s experiences and as a result introduce law that is flexible enough to respond to individual psychological complexities.99 However, despite this it fails to ‘point to mechanisms that would increase such attention’.100 This dissertation supports Sclater’s work by using the social sciences to demonstrate how ineffective legislation has been to date. But will seek to expand on her work in order to arrive at suitable mechanisms that allow psychology to be incorporated into any future reforms.

Functionalism and Divorce

To successfully advance a liberal ideology based on the psychology of divorcing spouses and the sociology of intimate relationships there should be a jurisprudential platform from which such statements can be justified.

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

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Divorce reform should be based on a functionalist approach to family law. In other words the law must not become obsessed with dogmatic theory, instead it should be based on ‘Law in Action’ derived from the empirical 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 Ehrlich advanced the idea of ‘living law’.102 He believed that individual citizens follow living law as opposed to ‘Law in Books’. He claims there is little use in reading rules out of books, when social life is based on other rules. Social theories mentioned in Chapter One reveal how individual citizens follow different rules based on individualism, freedom of expression and marital satisfaction. Therefore the law must become less concerned with the formal nature of the relationship and more concerned with how the relationship functions in terms of day-to-day practicalities. Ward LJ states; ‘The functions may be procreative, sexual, sociable, economic, and 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 Chancellor, Lord Irvine of Lairg, responding to the failed information meeting pilots, argued that family law is too important for the Government to want to rush ahead with ‘implementing legislation on a doctrinaire or speculative basis, without the best empirical information available, coupled with informed

101

R Wacks, Understanding Jurisprudence (OUP, Oxford 2005) 196 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 41 102

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.

Divorce: A process over time

Divorce is a complex psychological and social process rather than a single 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 allowed couples to go through the psychological stages of breakdown after the petition was issued. This constitutes a complete misunderstanding of the psychology behind intimate relationships. After the decision to divorce has 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 involves transitions, these transitions take place at the start of the 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) 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. 105

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Psychological Theories on Marital Breakdown

A comprehensive study of the psychological literature on marriage and divorce is unnecessary due to the fact that some theories have lost prominence as a result of recent social developments. The increase in 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 theories. Psychology is now read in conjunction with an economic analysis of marriage and divorce rather than merely focusing on family problems and poor attachment styles as predicators.

The Uncoupling Process

Developmental Theorists state that divorce involves a complex psychological transition from one stage to another defined by the actions of an initiator and non-initiator.109

Vaughan’s analysis of ‘uncoupling’110 represents a

developmental view as the divorce process is seen to take an orderly,

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 suffered from relationship breakdown she develops the process of uncoupling.

The Stages of Relationship Breakdown

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 validation of his/her negative sentiments towards the partner, through a 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 partner enters into a negotiation trying desperately to save the marriage. However, after the parties have debated the successes and failures of their relationship they both privately and publicly accept relationship breakdown is inevitable. In the end both parties establish new and independent identities from

one

another

separating

what

was

once

a

joint

enterprise.

Commentators, most notably Wiseman111 and Bohanonn112 have categorized these individual experiences into definable stages; denial, loss and depression, anger and ambivalence, re-orientation of life and identity and

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 inadequate divorce legislation has been to date.

Divorce is a Last Resort

Divorce is not a spontaneous reaction driven by individualist desires, but a lengthy process that can be understood in terms of transitions.113 For most, 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 judgement of family members. All constraints whether personal, religious, social or economic constitute roadblocks to divorce.114 The initiator in particular experiences an internal battle as to whether or not to give up on the relationship. In the end, however, the individuals will experience an 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 relationship breakdown after a divorce petition has been issued. Lengthy separation periods in the former and information meetings in the latter

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.

How Relationships Breakdown

A significant shift in policy needs to occur in order to establish suitable divorce law reform. The process of ‘uncoupling’ demonstrates that the law should

focus

on

‘how-not-why-people

make

transitions

out

of

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 behaved unreasonably, there is no foolproof way of determining one spouse is more at fault than the other. For Vaughan relationship breakdown is ‘so subtle, so complex, so volatile, so dynamic that using words to describe it imposes a contradiction to reality’.116 Therefore, if the process is so inherently complex the law should not seek to ask why the relationship broke down by attributing fault or imposing periods of reflection or consideration, but by asking how in order to gain a better understanding of relationship breakdown. It seems credible to claim ‘only by understanding how things come undone can healthier relationships be established’.117 If new family law were to highlight the steps divorcing parties go through it could help people who may be otherwise unaware of any relationship difficulties in order for them to do something about it or be more prepared for the inevitable. Divorce

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 dysfunctional relationship. However, family law in general can educate 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 road to uncoupling is not inevitable; there is always a chance of reversing the process.118 Initiators need to be aware that communication is the key and ‘as the problems of the relationship become more and more public, resurrecting the relationship becomes more and more difficult’.119

Criticisms of Uncoupling

Vaughan’s work has been criticised for failing to consider the social and cultural structures that may affect the uniformity during uncoupling. Vaughan’s sample fails to account for diversities based on the length of the relationship and age of the respondents.120 Fundamentally problematic is the absence of gender.121 A growing body of research suggests that experiences

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 is the recognition that leaving a relationship involves a ‘multifaceted and dynamic process’123, something the current law fails to recognise. However, family law must account for the discrepancies in the narratives of men and women. Chapter Three will discuss further the importance of gender difference during the divorce process.

Exchange Theory and Divorce

Developmental Theory has emerged alongside Exchange Theory.124 The latter states that the initiator will only reveal their true feelings about the inadequacies of the relationship and desire to move on if the costs of staying in the relationship are outweighed by the benefit of leaving. Benefits may involve love, support, emotional security, sexual gratification and economic status. Costs include work, responsibilities and limited amount of choice and freedom.125 Exchange Theory reveals how divorce can be looked at from an economic perspective. With the emancipation of women from the home, the increased freedom of employment and birth control, marriages can often 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, the risk of divorce is greatly reduced.

The psychological theories discussed demonstrate that the decision to divorce should not be understood from a moral absolutist standpoint; declared by the law as being right or wrong. Ultimately the psychology, sociology and economics of the divorce process are unique to every individual relationship based on a specific context where the individual looks at the consequences and implications of their decision on themselves and 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 relationship breakdown. This information should be used to develop an accurate theory of marital quality and stability.

Incorporating Theory into Family Law

In order for the law to be effective, it must be based on accurate empirical research. The law can educate couples most effectively through prospective and longitudinal studies, which reveal factors that place spouses most at risk of divorce alongside prevention strategies used to counteract them. Using

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 perfect marriage by encouraging certain conduct to achieve marital happiness. Intimate relationships are inherently complex and contradictory. On the one hand they appear to be the sole locus of intimacy, interdependence and stability,128 and on the other it is a place where we are our most vulnerable, opening up and sharing everything with our partner where these flaws can be used against us as justifications for divorce.129 Risk and Prevention strategies reveal that there are a small number of negative and interrelated patterns called ‘danger signs’130 that contribute to divorce. Using this information can help raise awareness as to the pitfalls of intimate relationships by highlighting factors that consistently contribute to marital distress and divorce.

Risk Factor Analysis

Deviating slightly back to the Liberal arguments in Chapter One, Giddens firmly

believed

that

society

is

‘increasingly

pre-occupied

with

the

futureLwhich generates the notion of risk’.131 Modern societies are exposed to risks.132 Giddens argued that ‘active risk taking is a core element of a dynamic economy and innovative society’.133 I propose that marriage is a risk, and each individual has particular characteristics that place the marriage 128

Ghaidan v Godin-Mendoza [2004] 2 AC 557, 139 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) 29 129

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at risk of divorce. Identifying and preventing these risks should strengthen marriage.

A risk factor can be defined as ‘some specific characteristic displayed by a person or their circumstances that bears some statistically significant correlative position in relation to their behaviour’.134. This dissertation will not list the various risk factors due to the fact that numerous surveys have produced hundreds of variables that can predict divorce amongst couples within a specific cohort. Halford however identifies four classes of variables that consistently place couples most at risk of divorce. These are; couple interaction, life events, individual characteristics and the cultural and social circumstances surrounding the relationship.135

Interpersonal characteristics, in particular the couple’s communication skills have had an affect on marital stability. It has been argued that if spouses are able to communicate in a manner that facilitates problem solving and engage in relationships activities as partners by emphasising the ‘we-ness’ they are more likely to stay together than through indirect and aggressive forms of communication and divided relationship roles.136 Couples, who communicate effectively, have flexible and realistic expectations of their relationship and view negative stressful life events as a shared challenge are more likely to avoid the road to divorce. Other commentators believe a ‘divorce prone

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 neuroticism,

disagreeableness

and

stress

alongside

low

levels

of

conscientiousness is at high risk of divorce.138 Many factors affect different individuals at different times of their relationship. In particular different types of intra-personal characteristics, as above, contribute to different types of problems within a marriage that will affect the timing of divorce.139 ClarkStewart and Brentano have analysed various studies to arrive at the ten most prevalent risk factors; young age, low income, race, rape, children, divorced parents, level of education, work status and poor communication.140 Most 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 to find employment with a high earning capacity, this low-socio economic status produces heightened levels of stress that can affect the ability to communicate effectively leaving the couple at high risk for divorce by comparison to those with higher socio-economic status.141 However, there is no use in developing a theory on the psychology of relationship breakdown if it has no practical importance in the lives of couples within intimate 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 significance of the step they are taking without understanding the psychological complexities and pitfalls marriage produces. The law can only be effective if it educates the couple as to the road ahead. The stage intervention can take place is difficult to determine. Legal intervention in the marital relationship must remain consistent with a liberal individualist approach to family law mentioned in Chapter One. The need for schools, propaganda and national education142 to help children understand the complexities of relationship breakdown is an encouraging start.143 National compulsory education about smoking, alcohol and drug abuse has been used extensively with positive results.144 Relationship education programmes could focus on the factors that are proven, through the use of risk factor analysis, to make for an unhappy marriage. Furthermore, potential spouses 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 introduce marital commitment mechanisms embedded within the marital contract that enable couples to opt-in or opt-out of relationship education and

142

Lord Mishcon, Hansard HL vol 525 col 813 (31 January 1991) 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) 143

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 help during the first signs of relationship difficulties.

Non-Legal Responses to Marital Breakdown

The law cannot provide all the solutions to marital problems. Social workers, psychologists and psychiatrists play an important role in resolving difficulties couples face. Thorpe LJ recognized this, arguing that some familial difficulties would ‘be better treated therapeuticallyLrather than given vent in the family justice system’.146 This is not an argument in favour of antilegalism, but rather it seeks to recognize the ‘autopoietic’ position of the law, whereby one discipline, the law, adopts the knowledge of other disciplines, such as psychology, economics and sociology.147 Couple Relationship Education (CRE) provides a good example of how the law can be influenced by external discourses such as social work, education and psychology.148 CRE involves a four-stage process aimed at strengthening the relationship. Awareness, Feedback, Cognitive Change and Skills Training provides couples with information about their relationship whilst clarifying expectations and encouraging positive communication, conflict management skills and

146

Re L (A Child) (Contact: Domestic Violence) [2000] 2 FCR 404, 439 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. 147

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positive expressions of affection toward one another. This non-legal form of education should become part of the marital contract.

Some commentators might argue that relationship education constitutes a dogmatic approach to law reform that entrenches couples in the same way as the FLA. However, the latter involves a paternalistic restriction on the freedom of individuals to leave a marriage in order to promote behaviour the State considers acceptable, whereas the former exists for the benefit of the parties themselves. Liberal individualism can be maintained on the basis that such schemes will be voluntary, allowing couples, perceived to be high risk, to contemplate the implications of marriage and the pitfalls during 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 providing information in a persuasive manner, but rather it educates couples on the complexities of relationship breakdown so that healthier relationships can be established in the future.

Criticisms of Risk Factor Analysis

One of the main objections levelled against risk factor research is that it presents individual risks within an isolated sample as uncontroversial facts.149 The patterns and correlations that emerge from the studies do not necessarily identify objective and concrete causes of divorce within all relationships. Thus the findings of an isolated sample do not represent the

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 presence

of

children

and parental divorce

vary across

European

jurisdictions.151 Societal context can impact on the intensity of risk factors. In comparing the UK with Finland it was found that pre-martial cohabitation increases the risk of divorce by 41.06% in the former and only 2.94% in the latter.152 Parental divorce in the UK increased the risk by 36.75% compared with 96.04% in Switzerland.153 A theory of marital quality and stability, 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 divorce on a national level. Moreover, studies have been criticised as being ‘embarrassingly white and affluent’.154 Therefore, research must incorporate minorities and define groups carefully. Nevertheless, through utilizing a meta-analysis of risk, a number of recurrent themes have emerged. These findings must be given due consideration when explaining the causes of family breakdown and in making a future family law policy.

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

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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 couples who are married or intend to marry as to the psychological complexities of relationship breakdown. An accurate theory of marital quality and stability can be achieved through couple relationship education and the education of young persons still in school, rather than through the mandatory slowing down of the divorce process.

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Chapter 3: The Cultural and Political Context of Divorce Reform

The issue of when an individual’s freedom can legitimately be restricted is 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 law would be used as a continuum to justify State intervention in family life. Wider Communitarian agendas for protecting the institution of marriage and reducing the cost of divorce on the public purse are again used to justify restrictive measures on the freedom of individuals to divorce.

The previous two sections advocated a Liberal individualist approach to divorce criticizing any Communitarian or Post-liberal approaches that failed to respect the private decisions of married couples. The liberalization of divorce was justified as a way of avoiding State intervention within the 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 domain of formal justice.156 Mediation, a key part of any no-fault liberal 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)

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political drawbacks of adopting a no-fault liberal approach.

The Centre for Social Justice (CSJ): Conservative Divorce Reform

Historically, Conservative party politics promote the moral and social well being of the community, retaining traditional institutions and a bourgeoisie lifestyle.157 Policies have sought to establish selective social benefits, such as tax breaks for married couples,158 with little consideration of the growing numbers of single mothers and cohabiting couples. Most importantly they deplore social change that leads to easier divorce law.

The Conservative party’s 2009 proposals have been formulated in such a way that ‘divorce reform discourse’ has been changed to ‘marriage saving discourse’.159 The proposals appear to mirror the failed FLA criticized at length in Chapter One. The Conservatives argue; ‘Marriage is of paramount importance to individuals, children, communities and our nation’.160 Marriage is viewed as intrinsically good and divorce is seen as inherently bad and to be avoided at all costs. The proposals introduce 3-month ‘periods of reflection and consideration’ including information meetings similar to those

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) 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 accessed 29 January 2010 [2.1.9] pg 59

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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 healthy post-divorce families.

The Family Law Act all over again

The Conservatives have not learned their lessons from the failed FLA. Arguably both seek to advance a marriage movement based around cooling off periods and the provision of information as a roadblock to divorce. The only difference between the two is that the CSJ proposals modify the information meetings to include legal representation on the basis that the ‘necessary level of legal experienceLis at the heart of the problem of information delivery’.163 Arguably the pilot projects failed because it was unable to achieve its primary goal of saving (saveable) marriages. The pilot results reveal that only 7% sought Mediation after the provision of information, and 39% were more, rather than less likely to seek legal advice.164 Modifying the information meetings to include legal representation does not overcome its inherent problem. The mandatory slowing down of the divorce process is based on the assumption that divorce is bad, marriage is

161

Centre for Social Justice, ‘Breakthrough Britain: Every Family Matters’ (2009) sponsored by Doha International Institute for Family Studies and Development 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 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 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

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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 law is ‘impotent to control how people actually behave in their 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 Communitarian moral panics, social goals and traditionalist politics.

Political Responses to Marital Breakdown

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

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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 living in a culture of individualism and relationship breakdown. There is a symbolic image of divorce as social disorder that justifies intensive State intervention in the private domain.168 This symbolic image dominates political discourse and influences law reforms to the detriment of those individuals the law is supposed to support. Coleridge J argues, ‘our society represents a complete and uncontrollable free for all where being true to ones needs is the only yardstick for controlling behaviour’.169 Coleridge was quoted at 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, exciting and democratic’, but it will be detrimental to society’s moral fabric.170 Coleridge and the Conservatives call for the ‘reaffirmation of marriage as the gold standard’,171 arguing that divorce contributes to family instability and social decline and thus the only way to counteract this is for the State to restrict the private decision to divorce and encourage spousal responsibility towards one another through supporting the institution of marriage. It seems credible to claim the main ‘feature of British politicsLhas been the

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 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

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predominance of form over substance’.172 The repeal of the FLA demonstrates how the State is concerned with the presentation of policy rather than the content of the policies themselves.

Sending the Right Message

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 marrying, about the seriousness and permanence of the commitment involved’.174 The law is used as a means of infiltrating the private domain of intimate relationships. However, rising rates of cohabitation and decreasing 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 send what the Government perceives as the ‘right message’. In accordance 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 own freedom of authorship’.177

172

J Eekelaar, ‘Family Law: Keeping Us on Message’ [1999] CFLQ 387 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) 1 173

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The Privatization of Divorce and the Feminist Critique of Mediation

A shift in emphasis from a fault based adversarial system where victims were publicly pitted against wrongdoers towards no-fault legislation where divorce is seen as a private decision between an unhappy but legally blameless couple seems an inevitable conclusion.178 The move from fault to no-fault 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 to make their own decisions on marital breakdown produces strong counter arguments by feminist writers, such as Scutt179, Bottomley180 and O’Donovan.181

No-fault legislation shifts the emphasis away from conflict to alternative forms of dispute resolution such as mediation. Mediation is defined as ‘a process in which an impartial third person, the mediator, assists couples considering separation or divorce to meet together to deal with their arrangements which need to be made for the future’.182 Under the current law there is an obligation on anyone seeking public funding and legal aid to attend a

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

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meeting to consider whether mediation may be a suitable option.183 The Conservative’s proposals for reform would implement mandatory meetings for both private and publicly funded divorces in order to consider mediation as a useful separation strategy.184 Counseling, conciliation, and mediation were proposed as positive alternatives to the traditional adversarial system 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 problems couples go through during relationship breakdown. Mediation confines disputes, conflicts and problems within the private arena rather than having decisions being imposed upon families by an external authority based on abstract principles. Mediation is presented ‘as the desirable outcome of progress in the development of family law over the years’.186 However, Feminists argue that insulating the divorce process away from public moralizing of policy makers, through mediation, facilitates domination of the stronger party over the weaker party in a supposedly neutral environment.

183

Family Law Act 1996, s 29 Centre for Social Justice, ‘Breakthrough Britain: Every Family Matters’ (2009) sponsored by Doha International Institute for Family Studies and Development 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) 105 184

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The Privatization of Divorce

‘Wives have legal equality with their husbands in all the main areas of family law’.187 For feminists this is untrue. ‘Marriage is a power relation’.188 Therefore any form of dispute resolution that fails to recognize this will be ineffective, and could advantage the party having greatest power, which is usually the man.189 Although in theory mediation appears advantageous, promoting a system of co-operation between the parties on an equal platform, it is ‘unrealistic vision of the world’.190 Feminists argue that society produces power differentials 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 comes to public attention.191. In this context, liberal laws which emphasize 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 as ‘natural’ and ‘inevitable’.192 Arguably, an individualist and rights based approach is only useful to couples who assert equal levels of power over the relationship. Where gender relations are unequal the enforcement of rights

187

Lord McGregor of Durris, Hansard HL vol 525 col 818 (31 January 1991) 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) 61 188

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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 oppressive to women.193 Therefore, when divorce disputes are dealt with through mediation rather than in the public domain they inevitably become private events devoid from legal intervention; enabling men to exercise 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 also a need to publicize power differentials and male-female inequalities, rather than privatize them through hidden ‘justice’ processes like counseling or mediation.195

This dissertation forwards Bottomley’s conclusion that lawyers should be present during the process as they can mitigate any power imbalance between the parties.196 Empirical research has shown that solicitors take account of their client’s attitude and emotional capacity to engage in face-toface 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:

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be maintained over individual needs on the basis that it gives substantive rights and offers procedural safeguards to the weaker party. Bottomley’s approach, as per Gidden’s in Chapter One, recognizes that, in a modern society, divorce law discourse lies on the boundary of the public and private spheres. It needs public legal regulation in order to ensure that any 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 as to correct modes of behaviour at certain points during this process.

The ‘Darker Side’ of Divorce

In all that has been mentioned hitherto the ‘darker side’ of divorce has not been

accounted

for.198

Liberalist

theory

in

Chapter

One,199

and

Developmental200 and Social Exchange201 Theories in Chapter Two account for divorce on the basis of a lack of fulfilment either because expectations have not been met, a clear lack of compatibility or the presence of an attractive alternative. Divorce is granted in order to allow for the realisation of the self.202 Mediation, mentioned above, celebrates individuality, individual

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)

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choice and individual rights.203 This all contributes to the claim that the divorce process should exist within a non-legal realm. However, a large percentage of divorces are petitioned on the basis of domestic violence, bullying, economic deprivation and cruelty. Davis et al. found that 57% of parents who reported a fear of violence were nonetheless deemed suitable 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 been a history of domestic violence. Mediation and no-fault laws in general fail to account for this.

Conclusion: Striking a Balance

Arguably, all family law policy, regardless of political association, is based on a ‘rationality mistake’. The liberal individualist arguments in Chapter One, which create an image of individuals living isolated lives protected by their right to privacy and autonomy, should apply to divorce law. However, this constructs a society of self-interested individuals unaffected by wider community interests of gender equality and child protection. A balance must 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) 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 58 204

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women and children are protected under the law. On the other, liberal nofault laws on divorce should be encouraged without the State imposing what it believes is the correct form of marital behaviour. With this in mind a suitable divorce reform can now be proposed.

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Chapter 4: Divorce Reform

Divorce Law Proposals

This dissertation proposes no-fault divorce reform, based solely upon the irretrievable breakdown of the marriage with two grounds: mutual consent, and separation. Marital misconduct becomes nugatory. Although Sclater is right that anger and ambivalence are natural emotions during the divorce process,205 the law should not encourage negative sentiments between spouses. Furthermore, Wiseman’s psychological transitions of relationship breakdown reveal how negative states of anger and ambivalence are eventually replaced by positive re-orientation of lifestyle identity acceptance and integration.206 Divorce law should facilitate this transition.

There is a repeated fear within Parliamentary debates that liberalizing the divorce process will increase the divorce rate and have negative economic and social consequences for women and children.207 There is no causal evidence to suggest liberal laws are solely responsible for increasing the divorce rate.208 However, some empirical evidence suggests that adults exposed to no-fault unilateral divorce as children ‘are less well educated, and

205

S Sclater, Divorce: A Psychosocial Study (Ashgate, Aldershot 1999) 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 11 216 206

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have lower family incomes’.209 More worryingly, there is some evidence to suggest a correlation between unilateral divorce and suicide rates amongst affected children in later life.210 In recognition of this, a balance should be struck thus giving effect to the autonomy of divorcing spouses but also ensuring protection of vulnerable parties within the relationship. A distinction could be made by permitting divorces by childless couples on mutual consent and divorces with children or a reluctant partner following a period of separation. This balance has become a political reality in Scotland.211 Where 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 years.213 This is a step in the right direction. However, this dissertation proposes a separation period of six months, similar to divorce law in Sweden, where there is a child or reluctant spouse. If the couple can reach an agreement the divorce could be implemented sooner.

A six month separation period is sufficient to allow both parties, in particular the non-initiator, to separate emotionally and psychologically. Thereafter, both parties should reasonably be ready to carry out the legal steps necessary to divorce and settle all financial matters and child care arrangements. Even after filing for divorce, where arrangements cannot be

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

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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 no roadblocks. Rather, the couple would be fast-tracked into a postseparation procedure. Divorce procedures would not be liberalized to such an extent that the separation process becomes ‘DIY’. Drawing on the conclusions within Chapter Three, legal representation would remain. The primary goal of mediation, an amicable settlement based on consensus by 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

Family Law Proposals

Following on from the arguments in Chapter Two; ‘A divorce that is withheld, delayed or obstructed does not save a marriage’.215 When divorcing parties have altered their internal and external lives to such an extent that they are completely distinct and separate from one another, the dysfunctional marriage cannot be saved and the wishes of both parties must be respected. An accurate theory of marital quality and stability should therefore be implemented into the general framework of family law.

214 215

Children Act 1989 Hansard HL vol 525 cols 812-54 (31 January 1991)

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This dissertation proposes legal intervention at the pre-marriage stage, and compulsory education within schools as to the complexities of relationship breakdown. ‘The ability to sustain intimacy in adult life is fundamentally rooted in childhood’.216 Empirical research reveals how our sense of trust, capacity for mutual concern, ability to reflect on our own actions and the level of sensitivity to alternative viewpoints are all qualities children develop during their upbringing.217 At a later date, couples, before entering into marriage, can opt-in or opt-out of commitment mechanisms incorporated into the marital contract. At certain stages of the marriage, normally between the 510 year periods, or at key relationship transitions such as parenthood, couples could also undergo relationship education programmes set up within a legislative framework. Without controlling the free will of either party, proposed commitment mechanisms and education training would remain voluntary. Relationship education would not take the form of the pilot projects under the FLA which had a persuasive function steering the parties towards saving the marriage or divorcing responsibly. Rather, it should tackle practical aspects such as debt, tax, parenting issues and then delve into the deeper psychological complexities of the relationship. Most importantly, throughout the process, ‘The expertsLare the couples themselves’218 rather than the State.

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

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Conclusion

Within the context of a dissertation it is impossible to propose a new legislative framework. However I have put forth a number of arguments 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 of marital partners in order to save marriage. As Eekelaar writes:

‘The history of the law of divorce, designed to secure monogamous marriageLtestifies its ultimate failure to inhibit the development of social norms’.219

As I have argued throughout, the social,220 economic,221 philosophical222 and psychological223 arguments suggest a divorce law intended to save marriage does not work.

A Liberal approach to divorce law reform embraces individualism, allowing a divorcing couple to exercise their autonomous nature and make their own marital choices. It recognizes that the concept of traditional, stable and

219

J Eekelaar, ‘Family Law: ‘Keeping us on Message’’ [1999] CFLQ 387 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) 220

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permanent marriage has been replaced with a purer relationship,224 which views humans, in particular women, as agents of change225 uncontrolled by a pre-determined set of rules based on an external authority.226 A Liberal approach views divorce as a socially acceptable process which recognises our changing identity, needs and desires. As Giddens suggests, the ‘self’ in a late modern society is fluid.

The aim of divorce law reform should be to enable people to leave a marriage succinctly, but with the appropriate safeguards. The need to respect one party’s control and autonomy should be restricted where the rights of the other within the relationship are adversely affected.227 A separation period of six months followed by swift post-divorce procedures conducted within the justice system, ensures the rights of both parties,(taking into account any sexual or other disadvantage) and the welfare of any children are dealt with effectively without any unnecessary restrictions on either party to move on.

Developmental228 and Exchange229 theories provide a psychological basis not only to criticize existing law but to propose radical change. Uncoupling and Micro-Economic Theory, as mentioned in Chapter Two, reveal how

224

A Giddens, The Transformation of Intimacy (Polity Press, Cambridge 1992) 58 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 69 225

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relationship breakdown is a lengthy process where both initiator and noninitiator 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 causes divorce.230 Many factors contribute to marital breakdown such as marrying young, low educational attainment, stress, unrealistic expectations, poor communication skills, an attractive alternative and prior cohabitation to 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 disintegration of the marriage by looking at the processes that lead to divorce through more accurate, prospective longitudinal studies.

Incidentally, these psychological theories were intended to provide an account of relationship breakdown applicable to both married and nonmarried and heterosexual and same sex couples. Statistics suggest the proportion of married couple families has decreased over the last ten years, (accounting for 71% of families in 2006, compared with 76% in 1996).233 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 accessed 2 March 2010

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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 a suitable legal mechanism for the plurality of family forms235 by strengthening non marital relationships and dissolving relationships based on the same reasoning. Family law policy based entirely on marriage leaves the Government with its head ‘rather deep in the sand’.236

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 economically desirable ends that benefit the community to avoid increased social costs in the form of state sponsored benefits and educational underachievement.237 These proposals do not increase pressure on the public purse; they simply require a shift in political focus towards an acceptance of social change. If divorce is, indeed inevitable in society, then couples should be educated to face the possibility of divorce.238 If Government truly believes that marriage is the ‘gold standard’239 and is 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 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

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To conclude, divorce is a unique discourse. It deals with concrete rules, procedures and precedents but also intangible emotions of love, hate, anger, intimacy, passion and betrayal.240 Conservatives seek to deal with the chaotic nature of divorce law discourse by ignoring social change, making 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 safeguards in place to prevent gendered and structural inequalities. However, the ‘autopoietic’ position of family law241 deserves greater recognition, relying on alternative discourses, in order to achieve more successful relationship outcomes. My point, therefore, is this- if we embrace change and expand our epistemological understanding of divorce, the law and relationships in general will be far better as a result.

240

J Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 MLR 467, 468. J Eekelaar, ‘Family Justice: Ideal or Illusion? Family Law and Communitarian Values’ (1995) 48 Current Legal Problems Part II 191, 198

241

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