Robert Verkaik: An antiquated system forged in the age of stigma and intolerance

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The Independent Online

The principles at the heart of Britain's divorce laws were established when the stigma of a broken marriage meant a woman faced ostracism from society.

From the mid 19th century a man could obtain divorce for adultery, but a woman had to prove cruelty or desertion, in addition to her husband's adultery.

It was not until after the First World War that women could use the same grounds for divorce as men. But the central themes of blame and fault continue to dictate the process of divorce.

The law is framed in such a way that married couples who set out determined to separate on harmonious terms end up attacking each other through lawyers.

Under the Matrimonial Causes Act 1973 all divorces are commenced by the issuing of a petition which must be acknowledged by the other party. And couples who have lived together during the divorce may have to start the whole process over again.

Around two thirds of divorces are granted on the basis of unreasonable behaviour or adultery. Those who do not cite the other spouse's conduct and want to end the marriage by agreement must wait until they have been separated for two years.

It is no wonder then that positions become quickly polarised so that once the divorce starts rolling it is difficult to reverse.

Lord Justice Wall and many of his judicial colleagues believe our divorce rules fail to meet society's requirements. The idea that the law lags behind modern society has long troubled politicians.

In 1996 the Conservative government tried to bring in no-fault divorces where it was possible to be granted a quicker legal separation - one year - without citing a matrimonial cause and where there was no agreement to the divorce.

But in 2001 Derry Irvine, as Lord Chancellor, threw out the proposals after a sustained campaign from sections of the media which characterised no-fault divorces as an attack on marriage.

In fact, it was anything but, as the new law would have made couples think twice before getting divorced. Before a divorce was granted, couples were required to put the needs of children first as well as make proper financial provision for all the family.

Research has shown the twin-issues of children and money can have a sobering effect on warring couples. Many who accept counselling, even at this late stage, patch up difference and opt for a second go. This process may take up to 18 months but is worth it even if the couple choose to divorce. Couples whose differences are truly irreconcilable, and can be identified as such from the start, can still obtain a quick and painless separation.

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