Till irreconcilable differences do us part

With divorce rates rising, the Government has a challenge on its hands. It wants to support marriage, but must make financial settlements fairer, says Diana Parker

The announcement that a Government-backed glossy guide, Marriedlife, is to be handed out at every Anglican wedding is the latest in a long line of attempts to buttress the institution of marriage. The timing of the publication appears to have been conveniently linked to the election campaign.

Marriedlife, subtitled A Rough Guide for Couples Today, is glossy, middle of the road, chatty and informative and confirms the enduring romantic appeal of marriage. But it also looks at the legal pitfalls and safeguards which define marriage in this country.

There is a section on "What do you wish you'd known before you married?", containing comments on reflections such as "we' d have to deal with one of us being unfaithful" and "when you marry someone with kids, you don' t automatically become a family".

The Government has a hard task in front of it ­ the statistics are depressing. Whereas 15 years ago there were 350,000 marriages a year now it is closer to only 250,000 with 145,000 divorces each year. Only a quarter of marriages take place in a church or place of worship. Yet marriage remains popular as an institution; nearly 40 per cent of marriages are second marriages for either or both of the couple.

The idea of a publication such as Marriedlife was first raised by Labour in its White Paper Supporting Families in 1998. The Government suggested all sorts of options to strengthen marriage as part of its "desire to develop a coherent policy on family support". It even suggested that pre-nuptials should be binding and there should be an equal division of assets on divorce, after the costs of rehousing both spouses.

Would more people marry and would marriages last longer if pre-nuptials were legally binding? Is entering into a pre-nuptial acknowledging the statistical inevitability of marriage breakdown? The average length of a marriage which ends in divorce is currently 10 years. It may be that by knowing what each will get moneywise on marriage breakdown may give certainty and a sense of security. My experience of pre-nuptials is that they are far more complex than most couples appreciate. Negotiating terms, often through solicitors, can cause damage before the marriage has even begun, and foreseeing what might feel fair in the future is sheer crystal-ball gazing.

The last Conservative Government tried to support marriage by passing a law making divorce more difficult. Huge controversy surrounded the passing of the Family Law Act 1996. It would have introduced no-fault divorce but the compromises resulting from the controversy made the Act unworkable. The new law would also have greatly encouraged mediation, a process for resolving disputes between couples without lawyers.

It is therefore rather ironic that in the last week the Family Mediators Association has collapsed because of lack of income ­ money previously derived from training for mediators. It was set up in 1985, the first mediation organisation set up to deal with mediation of financial disputes on divorce. Lord Irvine's decision this year to scrap the new divorce law has reflected but also compounded a loss of interest in mediation.

Mediation is about direct communication ­ talking solutions through in a controlled forum. But by the time of divorce, communicating has become hugely painful.

The new mantra for financial settlement is to achieve "fairness". It is this concept that underpins the House of Lords decision last October for Mr and Mrs White ­ even though all the publicity went to the comment on checking fairness by reference to what equality might achieve. The new judicial line is not equality, it is fairness. Last week Jacqueline Cowan did not get even quite 40 per cent of assets from the Court of Appeal even though they had all been built up over a long marriage.

The three judges raised the lump settlement to £3m, giving Mrs Cowan a total £4.4m share of her husband' s £12m fortune.

To justify her claim Mrs Cowan had argued that she had spent £10,000 a year on clothes, shoes and jewellery, £3,000 a year on pet food and a farrier and £36,000 a year on beauty care, sports, entertainment and holidays.

But the couple' s 35 year marriage had very much more humble beginnings Florence Baron QC, representing Mrs Cowan during the appeal court hearing in March this year, had described how the Cowans had set up home in a council house in Stevenage, Herts.

Mrs Cowan, who was born in Liverpool and left school at the age of 16, said that when her first son was born three years later they were almost living on the breadline.

All their furniture was bought on hire purchase ­ they had no refrigerator, telephone or television and she did all the family washing by hand. But by 1985 the success of Mr Cowan' s bin liner business meant they could afford to buy a home in the Caribbean and spend four months every year there to escape the British winter.

The marriage finally ended in 1994 after Mr Cowan, who had moved out of the family home to an address in Hampstead, north London, reduced his wife' s monthly allowance from £8,900 a month to £5,000. Mrs Cowan' s initial court settlement gave her the £1,775,000, their matrimonial home, Hadham Grange, Much Hadham, Herts, and a flat in Ocean Boulevard, Boca Raton, Florida.

The best judges of what is fair are the people affected ­ but for them to decide pre-wedding is too soon and for them to decide post-breakdown is too late. If glossy guides could encourage couples to debate and agree during their marriage what would be fair if they were to split, that would be the best way of minimising conflict on parting.

Maybe Marriedlife will encourage that process. I cannot help recalling, however, that when I was waiting in the matrimonial queue at Oxford Registry Office, there was a dog-eared pile of old Reader' s Digests. One just happened to fall open on an article entitled "How to Satisfy Your Wife in Bed". It gave us a laugh and many years on, surely laughter is still the best possible medicine for happy marriage?

The writer is senior partner and partner in the family department of the law firm Withers