No backbenchers in the bedroom

A handful of Tory MPs must not be allowed to scuttle reform of divorce laws, says Teresa Gorman
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The Independent Online
The man in the middle of the muddle over marriage, Lord Mackay, is the most unlikely man in the whole of the Cabinet to be accused of trendy liberalism. Approachable and without an ounce of pomposity, he is taking the flack in the media for undermining family values.

The Family Homes and Domestic Violence Bill has been in the pipeline since 1992. It has been through all its government stages except the final one in the Commons and it has the support of many church leaders, the Law Society and charities such as Refuge that deal with the victims of domestic violence. It is difficult to decide whether the Government climb- down is the result of a handful of back-benchers or whether it is a panic reaction to a newspaper campaign in the run-up to a general election. Either way, the Government would do well to stick to its guns and support the Lord Chancellor.

But you only need a tiny handful of backwoods backbenchers to turn a newspaper campaign into an alleged attack on the foundations of our society. Several of those who charged off to vent their spleen on the Lord Chancellor admitted privately that they had never heard of the Family Homes and Domestic Violence Bill until they picked up their copy of the Daily Mail last Monday morning. But now we have ditched a Bill designed to protect all children and women from violence that takes place in the family home. They will have to wait a little longer before they get the protection of the law.

Despite claims to the contrary, the family is alive albeit changing. One in three marriages ends in divorce, but two-thirds are successful. And behind the myth of the ideal family lies a variety of relationships which people describe as family life: one parent, foster, second marriages and people living together because one partner cannot get a divorce.

Many couples live together in stable relationships, sometimes because one of them cannot obtain a divorce from a previous partner. Like marriages, these relationships can break down, but whereas both partners in a marriage are protected under current matrimonial law, there is no such protection for couples who are living together. A family may be ill-equipped to provide proper nurturing, and the emotional problems that merge into conflict and unfulfilled expectations are the staple diet of counsellors and therapists. Communication is a big problem, as Relate has pointed out time and time again. The miracle is that despite its highly charged atmosphere so many families manage to survive, a remarkable tribute to the endurance of the institution.

Behind closed doors these families can be the cosy support units of the telly ads, safe havens and refuges from the world. But they also breed the very violence from which they are supposed to protect their members. A high percentage of violent crimes against children, wives and the elderly are committed within the family circle.

The Family Homes and Domestic Violence Bill would have provided for the first time a uniform code of remedies for victims of violence in the home.

In a formal marriage, a woman's property rights are clearly protected by, among other things, the Married Women's Property Act. But where she is cohabiting and she is neither the tenant nor the owner her rights are almost non-existent.

The whole area is a minefield, making it difficult for lawyers to advise women on how to protect themselves or go about re-establishing their rights to use the family home and care for their children.

Lord Mackay presides over one of the largest spending departments in the Government. A good Scot, in a tight spending round, he has found a way to save the pennies through the humane and admirable device of simplifying the way people can separate when their relationship is dead. If he has a weakness in the murky world of politics, it is that he is not a streetfighter. All the more reason to protect him from a handbagging by a handful of MPs who see him as condoning living in sin and the Bill as a "Fornicators' Charter".

The law has the right to expect both partners to accept the obligations of the relationship and equal responsibility in safeguarding the future of any children. But apart from that we should keep politics out of it and stop pretending that we can return to some imaginary Utopia.

A fifth of the legal aid budget is spent on settling the break-up of relationships made more messy by our refusal to acknowledge that marriages can and do go irretrievably wrong. The cost is rising alarmingly - in 1990 it was pounds 87m - by 1995 it had spiralled to pounds 296m, and it is still rising.

The second proposal from Lord Mackay to simplify divorce is long overdue. Where a marriage is dead it is best buried with as little animosity and grief as possible. Under his proposals, instead of alleging misconduct and raking up old grievances, either partner could file for divorce. A year would go by during which the couple could seek mediation and sort out their responsibilities, hopefully without resort to the courts. At present, they must go through an acrimonious row in front of a judge, fighting over the custody of the children, the family home, pension rights and property, rubbing salt into the wound.

The state should not try to force couples who have attempted a relationship and failed to resort to violence and abuse, real or manufactured, in order to resolve their difficulties.

The Government has a duty to protect people from violent behaviour inside or outside of their domestic arrangements. But it should not increase the sum total of human misery in the vain hope that a patched-up relationship will somehow be better for society.

Marriage or living together or divorce are all private matters between two individuals and certainly, where there are no children, they should be able to end the arrangement with the minimum of interference from the state. I would infinitely rather trust two adults to sort out their problem than have a group of backwoods MPs imposing their views on how the rest of us should live our lives.

Lord Mackay is bringing the law into line with reality. He is honest and decent and he should be supported. We should not try to use the courts to put the clock back.

The writer is Conservative MP for Billericay.