Rainscourt Family Law Solicitors

Divorce, fault and the future

I was asked this week about who exactly is divorcing. Not in a Daily Mail celebrity “WHO IS DIVORCING?” way but rather, which sectors of our society are choosing to divorce? A really interesting question. The implication behind the question was that the removal of legal aid for family law is intended to have an impact on our society by reducing divorce amongst its less wealthy members.

Whilst having a look through some academic papers looking for some information about this, I came across a Law Commission paper from 1988 called “Facing the Future: A discussion paper on the ground for divorce.” Now bearing in mind that this paper is over 25 years old, I was rather dismayed to discover that the concerns they raise are ones that I still hold today about our divorce system. The solutions they proposed were inventive and creative, and thoughtfully reasoned.

To consider that 25 years have passed since those suggestions were made, and families have continued to face not just the difficulties of a fault based divorce system, but the societal based stigma that they are somehow personally involved in the breakdown of society is a tragedy.  One could reason that we should be doing all that is possible to create a structure for harmonious dissolution of relationships, to help those individuals and their children adapt to their new circumstances.

Paragraph 3.23 of the report reads as follows –

“It has been suggested that much of the bitterness created between parties to fault based petitions is attributable to the lack of fairness, actual or perceived.  A respondent to a fault-based petition will often resent the fact that he is being held responsible for the breakdown when in his own mind he is no more to blame than  the petitioner.  This feeling may encourage him either to defend the petition, even if he wants a divorce, simply in order to set the record straight, or at least to be uncooperative in relation to the divorce and any ancillary proceedings.  Davis and Murch have called this “a clear example of the law itself generating conflict: the legal equivalent of what, in medicine, is termed “iatrogenesis”.  If a respondent who disputes the allegations in the petition ultimately decides not to defend, his bitterness may be intensified by a feeling of frustration at having to accept the construction in the petition simply to obtain an inexpensive divorce without waiting for two years. One way of venting his anger is to contest proceedings relating to children and finance. It seems almost paradoxical that the contents of the petition should cause such negative feelings in undefended divorces, when, as we have seen, they are no properly scrutinised and their only relevance to the divorce process is in satisfying the formula required by the legislation.”

As divorcing couples are encouraged to mediate wherever possible, surely the avoidance of this “iatrogenesis” would assist in the reduction of difficulties through the divorce process?

The album “Love, Marriage and Divorce” was released by Toni Braxton and Babyface last week on Mowtown records, and includes titles such as Roller Coaster; Where did we go wrong; I’d rather be broke and The D Word. The Law Commission paper from 1988 similarly reminds lawyers that whilst the divorce is the start of the process for us, it is usually the end of a very long process for our clients.  Perhaps in another 25 years the last track of that album could be “Divorce without fault”.

http://www.official-documents.gov.uk/document/hc8788/hc04/0479/0479.pdf

 

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