Marriage breakdown and the law .sx Brenda Hoggett .sx Divorce statistics are steadily rising , with Britain heading the European league .sx Politicians , social scientists , the Churches - all are concerned at the threat to the family .sx But what should be the response ?sx Below , a member of the Law Commission expounds the arguments for further legislative reform .sx To many people the whole idea of a 'good' divorce law is a contradiction in terms .sx It is not only committed Christians who believe that , ideally , marriage should be for life .sx The problem has been how to reconcile the need to release some people from that commitment with the desire to keep the others together .sx The law has known for a long time that it cannot force couples to live with each other .sx Nevertheless , it was thought that it could encourage them to do so by restricting the grounds for divorce to the so-called 'matrimonial offences' .sx The would-be 'guilty' party might be kept in order by the possible penalties of being divorced against his or her will , losing the children , having to pay or losing the right to maintenance .sx The 'innocent' party could choose whether or not to inflict these penalties on the guilty , but the hope was always that , as a Christian , he or she would forgive the one who had sinned .sx By 1966 , however , the upward trend in divorce was already established and this approach no longer made sense .sx Logically , it denied divorce to a great many marriages which had obviously broken down , because both parties had committed an 'offence' or wanted a divorce or had been living apart for so long that they were obviously never going to live together again .sx Many of these couples obtained their release by pretending that one of them had committed adultery .sx In 1966 a group set up by the Archbishop of Canterbury , in their report Putting Asunder - a Divorce Law for Contemporary Society , declared themselves to be " far from convinced that the present provisions of the law witness to the sanctity of marriage , or uphold its public repute , in any observable way , or that they are irreplaceable as buttresses of morality , either in the narrow field of matrimonial and sexual relationships , or in the wider field which includes considerations of truth , the sacredness of oaths , and the integrity of professional practice " .sx When the Divorce Reform Act 1969 was passed , most people thought it an improvement , but many of the criticisms of the hypocrisy of the old law apply almost as much to the new .sx First , it is confusing and misleading , even downright dishonest .sx It tells people that the sole ground for divorce is that the marriage has irretrievably broken down , which looks like a neutral and objective fact , rather than a judgement upon their behaviour .sx But then it insists that this can only be proved in one of five ways , three of which look remarkably like the old matrimonial offences :sx that one partner has committed adultery and the other finds it intolerable to live with him or her ; that one partner has behaved in such a way that it is not reasonable to expect the other to live with him or her ; or that one partner has deserted the other for at least two years .sx The only truly 'no-fault' ways of proving that the marriage has irretrievably broken down is if the partners have lived apart , either for two years if the other party agrees to a divorce , or for five years if he or she does not .sx In practice nearly three-quarters of cases are based on adultery or behaviour and only a handful are defended .sx The vast majority are decided under the so-called 'special' procedure , where a district judge scrutinises the written evidence and the circuit judge simply rubber-stamps the decision .sx The basis upon which one party obtains a divorce may have little to do with the real reason why the marriage broke down .sx This is discriminatory and unjust .sx The Law Commission's public opinion survey found that most people now think it a good thing that couples who do not want to blame each other do not have to do so .sx But in practice only those who can afford to live apart for two years can choose to have a 'civilised' divorce .sx The rest , particularly low-income families with dependent children , have to make hostile allegations whether they want to or not .sx In practice such assertions are almost impossible to contradict :sx not only are the financial costs of any defence considerable ( and a drain on the resources which will be needed by the most vulnerable members in the future ) but the chances of saving the marriage in this way are very slim .sx There can be few things better calculated to drive a couple further apart than the necessity to pick over each and every incident of their married life , with one of them looking for every opportunity to find fault and the other one trying to deny or explain away any criticism , whether or not it is justified .sx Defended or undefended , the process can produce a great deal of the unnecessary " embarrassment , humiliation and bitterness " which the Law Commission in 1966 thought it so important to avoid .sx People now expect much more out of their marriages than they used to .sx This may mean that they are more willing to bring them to an end if their expectations are unfulfilled .sx Women , in particular , are much less likely to tolerate violence or other forms of abuse and ill-treatment .sx Both men and women may be more inclined to seek happiness elsewhere , whether with other partners or on their own .sx But the greater the expectations of marriage , the greater the sense of pain , loss and failure when it comes to an end .sx By seeking to apportion blame , the law can serve to make the personal crisis worse .sx This might be an acceptable price to pay if there were any reason to suppose that it helped to preserve those marriages which ought to be preserved .sx There is none .sx The law obliges a couple whose marriage is in difficulties either to separate for a lengthy period or to make hostile allegations against each other .sx In undefended cases a decree can be obtained in a very short time , giving them little opportunity or encouragement to think again .sx It is a troubling possibility , even probability , that the greatest pressure to think again is felt by the very people who are most in need of a remedy :sx those victims of domestic violence who have young children to care for , no money , and nowhere else to go .sx A divorce may be their only way out of an intolerable situation , but such is the emotional and material dependence created within an abusive relationship that their resolve may crumble at the first hint of opposition , whereas a determined but much less deserving person will battle on .sx It is remarkable how many divorcing couples , particularly where behaviour is alleged , are still living under the same roof when the proceedings begin .sx It is equally remarkable how many of these cases fail to proceed .sx It is comforting but difficult to believe that these are always the unmeritorious or genuinely reconciled .sx Perhaps the worst feature of the present law , however , is that by its ineffectual attempts to keep some marriages alive it can hinder any attempt by the couple to think positively and constructively about the future .sx It can certainly make things worse for the children .sx Most of them would no doubt prefer their parents to stay together .sx But if they part , and are forced either to separate for a long time or to make hostile allegations , the children's suffering can only be increased , partly because of the uncertainty and animosity generated by the divorce itself , and partly because this makes it so much less likely that the parents will be able to co-operate in bringing up their children in the future .sx What , then , might be done to improve matters ?sx Some have argued that it would be better to leave things as they are , however unsatisfactory , because any change is likely to make them even worse .sx In 1988 the Law Commission published a discussion paper , Facing the Future , which set out the problems and canvassed the possible solutions in some detail .sx Most of those who replied thought that things were now so bad that an attempt at improvement should be made .sx Respondents included an impressive variety of people and organisations , particularly those with day-to-day professional experience of the present system and of work with separating and divorcing couples and their children .sx Looking at what is wrong with the present law , therefore , the commission tried to devise a system which would :sx - provide solid proof that the marriage had indeed broken down irretrievably before it could be dissolved ; .sx - give every opportunity to preserve any marriage which could and should be preserved ; .sx - avoid making worse any pain , distress and bitterness suffered by the parties or their children ; .sx - encourage both parties to think constructively about the practical arrangements to be made if the marriage is to be dissolved and to resolve these as amicably as possible ; and .sx - provide proper protection for the interests of the children and an economically weaker spouse .sx First , according to the Commission's proposals , it would remain the sole ground for divorce that the marriage had irretrievably broken down .sx There would no longer , however , be five different ways of proving it , three of which appear to require a finding that the behaviour of the other spouse had caused the breakdown .sx Instead , there would only be one method of proof which should be clear , straightforward and objective , leaving no room for argument or expensive litigation .sx Although a fixed minimum period of separation would fulfil most of these criteria , it would have the disadvantage of discriminating against those who cannot afford or agree to live apart .sx It is proposed , therefore , that breakdown should be proved by the lapse of a fixed minimum period of time , beginning with the lodging of a formal , sworn statement that the marital relationship has broken down and ending with an order for separation or divorce .sx Secondly , that fixed minimum period should be long enough to show clearly that the relationship has broken down .sx Even under the present law a surprising proportion of couples do not proceed to divorce after they have begun proceedings .sx Plenty of time should therefore be allowed for them to think again , nor should they be committed to a divorce or a separation until the end of the period .sx This should also enable them to think about and sort out all the practical arrangements before they are divorced , rather than afterwards as so often happens now .sx The chances of reconciliation may even be increased , not decreased , by concentrating on these considerations , rather than on the need to separate or recriminate each other .sx A minimum period of one year ( which is substantially longer than many divorces take at present ) would seem to do all these things .sx Thirdly , there should be an orderly but unhurried timetable during the year for making the practical arrangements which will be necessary if the separation or divorce is to take place .sx Often the parties will be able to negotiate these between themselves or their solicitors in the usual way .sx Sometimes they will benefit from the help of a neutral conciliator or mediator who can help them to resolve their disputes and to reopen lines of communication between them in their children's interests .sx Sometimes , of course , the court will be required to decide upon issues which cannot be resolved in other ways or where decisions are urgently needed .sx The principles relating to these so-called 'ancillary' matters would not be changed :sx if the way in which the parties have behaved is relevant to the financial settlement or to their children's upbringing under the present law , it would continue to be relevant under the new .sx Generally , however , the court would not interfere if the parties are capable of resolving things for themselves .sx Fourthly , the court would have power to protect the interests of the children and weaker parties .sx