Divorce is a subject of which, sadly, I have rather extensive experience. It is difficult to imagine how changes to our iniquitous, adversarial and highly unsatisfactory divorce laws would assuage the crushing emotional upset that results when a marriage fails, but we can only welcome any attempt to take the sting out of a legal process that, to my mind, makes a bad thing worse.
Baroness Hale of Richmond is a very fine person indeed. She was the first woman to be appointed to the Law Commission, is now Britain’s most senior female judge, and is the only woman among the 12 Supreme Court Justices.
Her status as a beacon for women in the legal profession is one thing, but Hale has been magnificent in her long-term fight to reform our antiquated divorce laws, and this week has re-iterated her call, first made 20 years ago, for the UK to adopt “no-fault divorce”, in which the necessity to apportion blame to one partner is removed.
The Baroness believes that this move would help remove the bitterness from matrimonial disputes, although those of us who have been through the pain of divorce – including Hale, incidentally – might not be inclined to agree wholeheartedly with her. Money, property and custody matters are more likely to be the sources of anger, resentment and recriminations than the question of who’s going to take the blame. In any case, the admission of fault is often merely an expediency for couples who want to divorce quickly.
Nevertheless, Hale deserves praise and support. She first put forward her proposals when she was at the Law Commission, but the forces of conservatism defeated her, an alliance of Tory MPs and our more reactionary newspapers claiming that removing fault from divorce would undermine the institution of marriage. “Our recommendations were perfectly straightforward and simple,” she said this week. “I am sure we should look [at the proposals] again.”
This time, she’s backed by the Marriage Foundation. Its chairman, Sir Paul Coleridge, said yesterday: “Lady Hale... is entirely right,” and added that the current system was “largely invented to get a quick divorce – a hangover from pre-1970 days which is manipulated by lawyers and parties”. Moreover, the political climate has changed: Britain is a more liberal, consensual country, and there’s a new willingness to consider changes to the divorce laws.
Around 120,000 couples divorce in England and Wales each year, so this is not a niche issue. You might argue that a senior legal figure wanting to remove the adversarial aspect from divorce brings turkeys and Christmas to mind, given that lawyers have most to gain from the status quo. “We should make it take longer to get a divorce and encourage people to sort out what happens to the home, children, money before, rather than after, they get a divorce,” said Hale, an eminently sensible proposal, as long as this doesn’t give a greater opportunity for prolonged arguments between lawyers.
More divorcing couples are opting for mediation these days, and from personal experience this is a more collegiate and less taxing method to resolve financial issues, and takes away some of the most upsetting aspects of a traditionally conducted divorce, such as the horror of opening a lawyer’s letter and finding either a gigantic bill or a litany of accusations from the other party’s legal representative.
The point remains, as Hale has identified, that something must be done. It will be hard, maybe even impossible, to take the antagonism out of a marriage break-up, but the more forward-thinking members of the judiciary owe it to us to try.Reuse content