Mackay links divorce and home violence:the queen's speech

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The Independent Online
STEPHEN WARD

Legal Affairs Correspondent

Lord Mackay of Clashfern, the Lord Chancellor, will today re-introduce a version of the Family Homes and Domestic Vio- lence legislation ambushed by Tory backbenchers, tacked on to the divorce reform proposals and given a gloss of "family values".

As revealed in the Independent last week, the two pieces of legislation have both survived as the "Family Law Bill", a title designed to give the impression it supports rather than erodes the institution of marriage. The Lord Chancellor hopes they will pass on a free vote to come into force by July.

Both parts of the legislation bear the scars of the conflicts with the family values wing of the party which threatened their chances of becoming law.

The divorce reforms, which abolish the concept of fault and seek to encourage mediation rather than adversarial litigation, show how Lord Mackay has made accommodations to gain the support of solicitors who had feared a loss of business to the mediators.

The Bill makes it clear that mediation is only for those divorces where both partners choose it, and that legal aid for lawyers advice and representation will still be available.

A compulsory information session stressing the benefits of mediation or marriage guidance may now be replaced by a much looser interview or video presentation sent to the home.

But legal aid will be extended to pay for mediation as well as lawyers, and courts and solicitors will be encouraged to refer couples to mediation.

The ambushed homes and violence legislation was supposed to have been a series of unifying measures which tidied up existing case law and ironed out anomalies over the rights of partners to live in homes when there is a dispute.

But backbenchers, who dubbed it the "live-in lovers Bill", were furious that it appeared to be giving new rights to cohabitees.

The Bill to be introduced today pays lip service to these worries. There will be a general clause requiring courts to "have regard to the fact that people who are cohabiting have not made the same commitment as people who are married".

The Married Women's Property Act of 1882 will not be extended to cohabitees; cohabitees will have slightly less right to have a violent partner evicted from the family home than if the couple were married; and where a violent partner has been excluded from the home, the exclusion can only last up to a year under the new Bill, while under existing law and the old proposals the exclusion could be regularly renewed. The time limitation only applies to cohabitees, not to married couples, and is expected to affect only a handful of cases a year.

Tory backbenchers had wanted to amend the Bill so that partners could only be excluded if they caused "physical" harm, but the Bill retains "mental harm" as well.

The divorce reform will be the first big shake-up of the law for 25 years, and the first this century to be introduced by a government rather than as a private members' Bill. It had provoked widespread concern within the Tory party that the Government appeared to be undermining the institution of marriage by abolishing the concept of fault as the grounds for a divorce.

Faced with the row, some senior Conservative figures feared it was too controversial to be introduced in a legislative programme in the run-up to a general election. They argued - ultimately unsuccessfully - that it appeared to make divorce easier, and undermined the Tories' reputation as the party of the family.

The willingness of the Lord Chancellor to demonstrate flexibility over the involvement of solicitors has already won their public backing for the Bill.

Yesterday, Hilary Siddle, chairwoman of the Law Society's family law committee, said: "I hope that improvements to the detail of the Government's proposals will be possible through constructive dialogue between the Government and family lawyers, who understand how the current system works and what improvements are necessary."

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