Till death, dispute or boredom do us part

Divorce is to be made a little easier, but also a little harder. Will it all actually make any difference to our behaviour? Polly Toynbee examines whether kind words and conciliation can stem our national habit of breaking up
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The Independent Online
Divorce is usually a bloody affair. Yesterday's idealistic White Paper seeks to bandage the wounds, easing people gently into separations less bitter and damaging to themselves and their children, urging mediation instead of warfare.

The moral panickers who say society is falling apart blame a sea of social malaise on the "breakdown of the family". A terminal dry rot is eating away at the most important building-block of a stable society, all our ills spread outwards from this malignant canker. Each year's divorce figures are greeted with a wailing and gnashing of teeth, as each year they show more divorce, less marriage and fewer children born in wedlock.

These are the facts that frighten the moral worriers. More than 40 per cent of marriages end in divorce. Over a third of babies are born out of wedlock. Some 35 per cent of people in their mid-twenties to mid-thirties are cohabiting, not married. The family with two natural parents plus dependent child now accounts for only 24 per cent of households - so much for the advertising image of the ``typical'' Oxo household. Those who do marry are delaying it, bridegrooms' average age is nearly 29, brides are 27. Divorce is most likely to occur three or four years after marriage, the median length of marriages before divorce is 10 years.

The question now is what is marriage for? Yesterday's reform leaves the legal status of the marriage contract as thin as a diaphanous wedding dress. It remains deeply significant for the few who are religious, but its significance is becoming less clear to many who marry with their fingers crossed and one eye on the divorce statistics. By removing any notion of blame, there is no official disapproval of the breaking of the contract by either side. "Thou Shalt Not Commit Adultery" is wiped off the statute book once and for all. Critics of yesterday's reforms say bitterly that marriage is now less binding than a landlord-tenant or a hire-car agreement.

And yet on divorcing, the bitterness and regret is still deep. One partner is usually left distraught. The desire for revenge by the self-proclaimed "wronged" party creates a strong emotional need for a day in court to castigate the wrong-doer on the public record. The day in court was abolished in the 1970s. But at least there was a bit of paper that said the bastard had deserted/fornicated/behaved unreasonably. With the abolition of blame, the wronged partner will have to gnash his or her teeth in silence.

Until now a vengeful partner could delay granting a divorce for five years, to squeeze the last bit of rage and fury out of the deserter. Now, at the end of the year, like it or not, you are divorced. What is a contract worth, when you can walk out any day, murmuring "irretrievable breakdown", without obligation, without even stigma?

In fact, all the law is doing is catching up with people's behaviour, trying to tidy up the debris of the social revolution that has burst out over the last 30 years. The law never stopped people separating, it simply dragged them into worse disputes than necessary.

This White Paper marks the final failure of the Gummers, the Archbishops, the Chief Rabbis and others who have been trying for years to devise laws that will prevent people leaving one another. Nothing the moralists suggested ever had much ring of conviction. Some advocate stronger education for marriage, and warnings about the consequences of divorce in school. Most recently the Archbishop of York suggested financial incentives for people to marry and stay married, by using the tax and benefits system. But the idea that a few pounds here or there would change people's behaviour is unlikely to work. If you look at what people are prepared to lose when they divorce - a house, a chunk of income, their children, often half their friends - it is hardly something they do lightly.

For women in particular, divorce is an economic disaster. Yet many more women than men file for divorce. Freedom seems to be more important to them than money, as they become increasingly unwilling to put up with men in the way their mothers did. Minor tax changes cannot hold back the flood tide of people's demand for freedom to live with whom they choose.

It is a modern freedom as important as democracy or free speech. What is the value of civil liberties if you are imprisoned for your whole life with a partner you detest, someone you only married on account of youthful accidental pregnancy? Those who denounce divorce seem to have forgotten the untold misery of the pre-divorce era. Shotgun marriages were very common. More girls under 20 had babies in 1964 than now, but in those days they were pushed into marriage. Was that better?

The true modern contract between couples now comes not with marriage, but with the bearing of children. The Child Support Agency doesn't care if it was a one-night stand or a 10-year marriage - the child is what binds you together, yours to pay for until adulthood.

While divorce law is eased, child support laws have been sharply tightened. Under the old system the courts were making fathers pay an average of £10 a week per child. Now the Child Support Agency takes 20 to 30 per cent of men's disposable incomes, after deducting their new mortgages - or it would if the Government had not caved in under the mass refusal by fathers to pay their due. The failure to provide for women and children after divorce is condemning huge numbers of children to poverty. If women can't earn enough to be breadwinners, then the Government has to get tough again and force fathers to pay realistic sums. That is a far more serious moral issue than a change in divorce law.

The new law is supposed to ease some of the worst fall-out from divorce, especially the treatment of children. Two-thirds of fathers never see their children again within two years of divorce, mainly because they choose not to. The degree of grief children suffer depends largely on how well divorcing parents behave. Overall, children of divorce do worse at school, in work and in their own marriages. The research has never been done to compare the children of the unhappily married who stay together for their sake, with those of divorce. But some research shows that children of warring couples who go on to divorce start to do worse at school long before the divorce, suggesting it is not the separation itself but the friction that causes problems.

That is why mediation lies at the heart of the new law. Instead of blaming one another in court, couples will be encouraged to sit down together and make agreements. It will start with a compulsory information session with a team of experts. Bizarrely (and cheaply) these sessions will happen in groups. Perhaps the grisly thought of being forced to sit and watch a video and a lecture with a roomful of other miserable and angry couples, without privacy, is supposed to act as a deterrent.

They will be given information on what the CSA will demand of them, told about mediation services, legal aid and lawyers. To mollify the moralists, mediation has been sold as a means of getting couples to reconsider divorce, but all the research shows that is exceedingly rare: mediation makes separation more civilised. It is marriage guidance at a far earlier stage, that can make a difference.

What happens next is disputed. In theory, couples will be able to choose. The Solicitors' Family Law Association fears that those who cannot afford their own lawyers will be pushed towards mediation because it is cheaper, yet couples often do need lawyers as well. Permanent life-changing decisions are being made about the home, a share in a pension, and maintenance. Women can be left pitifully vulnerable in divorce if they have less access to money, lawyers and accountants than their richer spouse. On average everyone loses 40 per cent of their income on divorce, but after about four years the man has usually regained his previous disposable income, while his former wife and children, most of whom go on to social security, rarely regain it unless she remarries. Twice as many men remarry or cohabit after divorce as women.

Divorce used to be seen as a charter for cads and bounders. Despite everything, in practice it is sought more often by women throwing off their chains, even at great financial cost to themselves.

Whatever the Government has been murmuring uncomfortably about family values, social historians will mark this reform as the time when the law finally abandoned its Canute-like attempt to stem a profound social and sexual revolution.