Leading Article: Labour joins the right: divorced from reality

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The Independent Online
"A dog's breakfast," Labour's Paul Boateng called it. He has a point. The Bill to reform the divorce laws has been shamelessly hijacked by political opportunism, hypocrisy and unrealistic expectations about the how laws can change behaviour. The combination of Labour's absurd response to the Bill and the machinations of the Tory right have soiled what started life as a sensible reform. Still, even as amended the Bill is an improvement on the current divorce laws, and Labour would be wrong to oppose it for the sake of short-term political gain.

For some, of course, the tortuous battle over the beleaguered Bill has been worth it. Basil Hume, head of the Roman Catholic Church in England and Wales, believes the travails of the Family Law Bill in Parliament have led to significant improvements. These include an 18-month waiting period before divorce, rather than the 12 proposed in Lord Mackay's original Bill - particularly in cases where there are children under 16. For the Archbishop, the extra six months place a greater emphasis on the seriousness of marriage and enhance the chances of reconciliation. Other changes include a statutory provision for marriage support services, for which the Government will have to stump up some cash if mediation is to become a reality.

There is no doubt this Bill would have a dramatic effect upon married life, especially its common end. Three-quarters of today's divorcees split up through the so-called quickie divorce. Accuse your spouse of adultery and the whole thing is over with a flick of the fingers. If this Bill makes the statute books most of those couples would have to wait 18 months before embracing the single life once more. And even the childless spouse who is the victim of a serious matrimonial offence will still have to wait 12 months before getting a divorce.

It sounds draconian. But the current system is in need of reform. The most significant failing in the current legislation is that there is no requirement for divorcing parents to give thought to the consequences of their actions on their children, and no encouragement to mediate disputes, attempt reconciliation, or indeed do anything apart from engage in an adversarial legal process.

Whatever mistakes have been made by Lord Mackay, the Lord Chancellor, over the handling and detail of the legislation, the guiding principle underpinning the exercise was a logical extension of the 1989 Children Act. It was this Act that ushered in a new era of seeking to resolve issues without resorting to orders of the courts and, crucially, the idea that people should begin taking more responsibility for their actions as far as they affected children. A 12-month delay before a divorce is agreed is a small price to pay if it helps to ease negotiations over the children's future, and allows time for changes to be properly and coolly considered.

Sadly that sensible principle has been hopelessly corrupted by politicians seeking to use the issue to position themselves as the true defenders of family values. Thus we have heard Mr Boateng making the case that all divorcing couples should be compelled to attend a session of marriage guidance counselling regardless of their wishes. The same Mr Boateng who wants all couples to go through mediatation recognises legal provisions to protect wives from violent husbands are woefully insufficient. If it were simply that Labour was unsure and unclear about where it stands, that would be one thing. But far more worrying is its wilful flirtation with a conservative communitarianism which plays well to the Dail Mail gallery. The debate over divorce is a "dog's breakfast" in part because Labour is so incoherent and inconsistent on the issue.

At the other end of the spectrum, the latest device by which Tory moral fundamentalists hope to reintroduce fault-based divorce is a proposal to allow couples to enter into legally-binding marriage oaths that could only be broken by desertion, long-term separation, adultery or intolerable behaviour.

The result of the pressure from the Tory moral fundamentalists, the weakness of the Tory leadership and vacillation in Labour ranks is a flawed Bill and a missed opportunity to tidy up our divorce laws. More emphasis is now being put upon "conduct" in parental disputes over children. The period before a divorce can become effective is too long and in a petty, counter- productive attempt to encourage mediation while saving public money, legal aid claimants will be obliged to make one visit to a mediator before deciding whether to opt for mediation or legal proceedings. It was for these three reasons that the Law Society withdrew its backing from the Bill last week.

By a long way, this is no perfect piece of social legislation. It would be nice to think a much better alternative would soon be on offer from a sensible, clear headed Labour Party. But that hope may well be forlorn for a party caught between naked opportunism and a flirtation with a disciplinarian social agenda. Labour should think hard about whether joining forces with the John Pattens and Lady Olga Maitlands of this world is worth it to inflict the most decisive defeat on the Government of the current Parliament. This Bill is far from perfect. Yet it should achieve one of the central goals of any reform: to make divorcing parents think, plan and provide for their children. A party that is truly committed to family values would support a measure to improve the lot of children when families unavoidably split.

Ditching the Bill now would throw away too much that is constructive along with the bad. Beneath the clamour and the campaigning, the plain fact remains that the current system of divorce is supported by virtually nobody. Lord Mackay's imperfect reforms are the best we may have on offer.