This article originally appeared in T&S Issue 34, Winter 1996/97.
In the 1970s feminists asked ‘YBA Wife?’. 20 years on it’s worth reviving the question as politicians, united in their obsession with ‘family values’ and cutting welfare costs, bring in an alarming new divorce law. Jill Radford reports.
In June 1996, the Family Law Act received Royal Assent and became law, likely to be implemented in 1998.This Act represents the most far reaching and fundamental ‘reform’ of the divorce laws of England and Wales since 1967 and will affect all those seeking divorce after 1998. It provides for a new process for divorce and separation, scrapping ‘quickie’ divorces, and introducing ‘no fault divorce’ after a compulsory 12-18 month waiting period. It attempts to shift divorce away from the legal process by expanding the role of mediation to the point that legal aid will no longer be available for legal services, but only for mediation. While Part 4 of the Act, which aims to simplify and streamline the procedure for applying for domestic violence injunctions, is to be welcomed, this article argues that the reformed divorce process represents serious bad news for women and children and concludes by suggesting it is certainly time to ask again: YBA wife ?
From the very beginning, the Family Law Bill was controversial. At one point it threatened to bring down the government and almost led to the resignation of its architect, the Lord Chancellor, Lord MacKay. In September 1995, the Tory far right and family fundamentalist MPs, under the guidance of Families Need Fathers and disparate men’s lobbies, began mobilising opinion against the Government’s proposals on divorce law reform. This grouping had latched on to an earlier Bill, the Domestic Violence Family Homes 1994 (DVFH) Bill, when it had almost completed its Parliamentary journey. The political fuse they ignited blew out the DVFH Bill (which aimed to offer better protection for women by streamlining and simplifying the law around injunctions). The Daily Mail in October 1996 ran a series of articles claiming the measures were ‘anti-marriage’ as they offered equal protection to married and unmarried women. By November 1995, the survival of these measures and those contained in the Government White Paper ‘Looking to the Future: Mediation and the Ground for Divorce’, was seriously questioned. However, a revised Family Law Bill which included both sets of provisions, with only modest concessions to the far right, was drafted and introduced into Parliament.
With this history, it is not surprising that the Family Law Bill had a stormy ride. It was labelled by The Guardian as ‘the most controversial piece of legislation since the Poll tax’. As product of compromise with the far right, family fundamentalists of both main parties, and, it needs to be said, token acknowledgement of feminist concerns around domestic violence, Paul Boateng’s depiction — a ‘dog’s dinner and deeply flawed’ — is fitting. The Guardian’s headline claim: ‘Divorce: a law nobody wants’ was one of the more apt.
Marriage saving or cheap and cheerful divorce?
A stated aim of the Act, is to make divorce less expensive to the state, by reducing the cost to the Legal Aid Board. Reasons why the costs of divorce are presently so high include the high cost of legal services and the large number of people seeking divorce. A recent study (L Radford 1994) found that women going through a divorce have faced costs of up to £10,000, so the aim of cost cutting appears attractive. With two in five marriages ending in divorce, the UK has the highest divorce rate in Europe; in the 1990s, on average 300,000 adults and 150,000 children are involved in divorce each year. 175,000 divorces were granted in 1995. Most divorces are initiated by women: 71% in 1994. Of these, 76% were granted to women on the basis of male ‘misconduct’ (22% adultery and 54% unreasonable behaviour) which in practice usually means physical, sexual or emotional violence to the woman and/or children. Under the present system, when women petition on ‘fault based’ grounds, a divorce is usually finalised within seven months. The aim of cutting the public cost of divorce, or shifting it to the private sphere of individual responsibility, is one shared by all political parties. Only a small but hardworking band of feminist activists was concerned that any savings in public spending are once again at women’s expense, and to male advantage.
Cheap and cheerful divorce
How precisely this cost cutting is to be achieved has proved more difficult to decipher. One way proposed in the Government White paper by making divorce more amicable by removing lawyers from the process. Dominant representations of lawyers depicts them as being both too expensive and responsible for the acrimony of the divorce process. Rather than recognising the pain and problems which stem from marriage and the behaviour of married men, these representations focus on the processes of marriage dissolution.
Under the Family Law Act, instead of each party to a divorce seeking independent legal advice and instructing a solicitor to act on their behalf, couples seeking divorce will be expected to reach an agreement, with the help of a mediator, regarding both the future of any children and any property and financial matters. Legal aid for legal representation will be now refused, except in particular circumstances (which have not been specified), and allowed only for the services of mediators. The presumption is that the costs of mediation will be lower than legal fees. National Family Mediation, one of the two main mediation bodies in the UK, is a voluntary sector organisation, with unpaid management groups, small numbers of part-time staff and volunteers. As one solicitor commented:
Part-time, middle class, middle aged, ex-Relate (staff) may seem a good idea, but they have insufficient experience to get the end result in all issues mediation. If the courts are going to regulate the proposed orders properly, the lists will become terminally clogged, whilst poor judges try to ascertain if anyone did get to the truth of financial issues and if consent was given truly and freely. Or are we going to abandon the quest for justice and fairness?
Marriage saving
The second approach to cost-cutting is to make divorce more difficult, so fewer people, (i.e. women) will seek divorce. Jane Lewis noted that prior to the publication of the Government White Paper, Lord MacKay spoke of introducing measures to cut the rate of divorce. She also documents how, as the Family Law Bill proceeded through Parliament, concern with marriage-saving increased:
In November 1995 the Lord Chancellor commented that ‘the debate has been as much about marriage as it has been about the finer details of the divorce system’ . By April 1996 in standing committee Labour and Conservative MPs were calling for the Bill to give more explicit support to marriage. Edward Leigh QC said he wanted to shift the whole debate and emphasis of the Bill towards saving marriages. Paul Boateng joined in, desiring that the Bill ‘should not simply be a vehicle for the dissolution of marriage, but a means by which marriage might be supported’.
Jane Lewis points out that the idea of marriage saving via divorce legislation is not new, but there is little either in its history or in the realities of current trends in behaviour to indicate it might be successful in the late 1990s. Her very interesting article looks at the history of marriage in twentieth century UK and notes that it was in the decades following 1945 that marriage became increasingly the norm and took place at increasingly younger ages. While there was an increase in (hetero) sexual activity outside marriage and increased pregnancy rate, there was still a tendency to marry before childbirth. The 1970s, she argues, demonstrated a different pattern, with substantial declines in marriage rates, increasingly older marriage, a huge rise in divorce rates and the emergence of widespread cohabitation. She concludes that: ‘While the 1960s saw a separation of sex and marriage, the 1980s have seen more of a separation between marriage and parenthood’. Confirming Jane Lewis’s argument, recent figures from the Office of Population Census and Surveys showed 299,197 marriages in 1993, the lowest figure since 1945.
It appears then that attempts to cut the cost of divorce is to be achieved by simultaneously making divorce more amicable and more difficult — contradictory aims by any reckoning.
Cutting the crap
This contradiction can only be resolved by examining the new law in more detail and within a feminist analysis which recognises the centrality of gender to marriage as institutionalised heterosexuality.
Part 1 of the Family Law Act provides a new process for divorce and separation. It scraps ‘quickie divorces’ by introducing ‘no fault’ divorce after a 12- 18 month waiting period. Under the new provisions:
i) irretrievable breakdown of marriage becomes the only ground of divorce;
ii) compulsory information is to be given to divorcing couples;
iii) divorce will only be granted following a fixed period of reflection during which arrangements for the future are agreed;
iv) the role of family mediation is to be expanded.
Irretrievable breakdown of marriage as the sole grounds of divorce
The rhetoric here is that divorce will be more amicable if it is forward looking, rather than focusing on past (mis)behaviour. This ends the so called ‘quickie divorces’ granted on the basis of ‘fault’, eg a man’s adultery or domestic violence. This measure was opposed in Parliament by those on the right of the Tory party, who argued that divorce on demand, their representation of this proposal, would weaken the institution of marriage by removing its moral basis. From a feminist perspective ‘no fault divorce’ is also seen as problematic in that it will doubtless serve to deny the reality of men’s disrespectful behaviour to women, and women’s increasing refusal to put up with it. No fault divorce is likely both to deny men’s wrongs, and women’s rights to live free from violence and abuse. From a research perspective, the masking of ‘unreasonable behaviour’ within a liberal notion of irretrievable breakdown of marriage, will also remove domestic violence from divorce records. So an important source of empirical data regarding the prevalence of domestic violence and women’s willingness to name and resist it will be lost.
Receiving compulsory information
It will become mandatory for divorcing couples to receive information about divorce and its consequences. In principle this should cause no problem. Feminist organisations, like Rights of Women, in providing a legal advice line, have long recognised that without high quality information, women cannot make informed choices. However I seriously doubt if the government’s aim in providing mandatory information is facilitate women in taking power and control over their lives. I suggest their aims are more mixed. It seems likely that the information sessions will be focused on deterring rather that facilitating divorce. Issues of quality also arise since it is the government’s intention to exclude lawyers from the information-giving process. Clearly the value of any information given by non-lawyers and separated from advice has to be questionable. It is doubtful whether any such information can be given in a sufficiently flexible way to cater for the different needs and circumstances of women from different cultural backgrounds and in a diversity of languages.
The Bill’s initial proposals required divorcing parties to attend public information sessions. This highly inappropriate requirement, tantamount to requiring a public announcement of intentions to divorce, could generate all manner of embarrassing scenarios, and rob a woman of any confidentiality, exposing her to the danger of (further) violence. Imagine sitting next to Princess Di to be told what bad girls we are for wanting to divorce. The level of disquiet amongst politicians briefed by Rights of Women at the spectre of public humiliation sessions led to the public element being dropped, but only in the very last minute compromise. Public sessions have now been replaced by promises that such information will now be given on a one to one basis and will include information about how to seek protection against domestic violence. However the final form of information giving has not been specified, but like other crucial details, left to guidelines which do not need discussion in Parliament. However, earlier concerns about compulsion, the quality of information, whether it will be aimed at deterring or facilitating divorce, and the questions of cultural and language diversity remain. It seems to me that if the information is be valuable, it would not be made compulsory.
Fixed period of reflection
As initially published, the Bill, enscripting the government’s commitment to ending ‘quickie’ divorces, included provisions for a one year waiting period between the filing a ‘statement of marital breakdown’ and a divorce being granted. This, in official rhetoric, provides an opportunity to reflect on whether the marriage can be saved and to make arrangements regarding the future of any children and financial and property matters. As Lord MacKay put it:
Many of those who divorce regret having done so. I hope and expect that the period for reflection and consideration envisaged under the reformed divorce process will result in the avoidance of some of these hasty divorces, because the process of considering the value of marriage and the consequences of divorce will happen before divorce, not after as happens now. (The Guardian 24/2/96)
Rights of Women lobbied strongly against a compulsory waiting period, arguing that:
- Women spend a long time reflecting and agonizing over the decision to seek divorce before starting the process. Once a decision has been made, women usually want to get on with the divorce in order to rebuild their own and their children’s lives with minimum stress;
- A one year waiting period, may serve to keep women and children in situations of uncertainty and insecurity as issues about who will live in the family home, what happens about the children or the mortgage repayments, are unresolved at this point. Questions about how an obstructive man can be made to leave the home or what is to prevent him salting the assets away can arise during this year of uncertainty;
- Women may find themselves trapped for a further year in relationships with violent men, putting them and their children at further risk of violence, stress and insecurity;
- Where there are no children or property issues to resolve, the waiting period serves no purpose;
- In any circumstances the idea of a compulsory waiting period is both patronising and unlikely to achieve the level of reconciliation the Lord Chancellor anticipates;
- As the Act also provides that a statement of marital breakdown cannot be filed in the first year of marriage, if the relationship breaks down within the first three months, for example, then the waiting period is expanded to 21 months — for no particular reason.
- Compared with reforms in other countries, the Family Law Act is unusual in not distinguishing between consensual divorces, and those where issues are unresolved; other jurisdictions allow for quicker divorces where both parties have agreed things at the outset.
During Parliamentary debate, right wingers and family fundamentalists orchestrated a campaign to increase the waiting period: in April 1996, they won a free vote in the House of Commons, increasing it to 18 months, and in May 1996 they were successful in adding in a further three month delay making for a total waiting period of 21 months. However as a part of the last minute package of compromises, the waiting period was effectively restored to 12/18 months agreed on an earlier free vote.
As a consequence of feminist lobbying, there is now a specific provision that where there is proof of domestic violence (i.e. a non-molestation or occupation order is in force), the waiting period is limited to 12 months. However the necessity of obtaining a court order means that women who do not apply for an order, or whose applications are refused, will not be able to use this provision. Refusal to recognise domestic violence as the norm rather than as exceptional for women seeking divorce, has led to this requirement of proof.
While the outcome in relation to the waiting period is better than it might have been, feminist concerns, particularly in relation to domestic violence, remain.
Expansion of the role of family mediation
The Family Law Act proposals make mediation compulsory for women on legal aid, except in narrowly defined circumstances. Over the last ten years, mediation has become an increasingly popular mode of alternative dispute resolution (AD). Its ideology is that settlements which both parties have helped to negotiate are likely to be the most cost effective, most likely to be adhered to, least traumatic and less damaging for children. Transferring divorce from a framework which aimed to protect the legal rights of the divorcing parties to one which emphasises mediated outcomes, supposedly cuts the expense and acrimony of divorce. As well as leading to ‘cheap and cheerful’ divorce, its proponents claim a further advantage of mediation is that it is more likely to facilitate marriage saving:
The introduction of mediation will increase the chances of couples choosing to step through the door of reconciliation, because in working out matters in relation to their finance, property and children, and thereby perhaps re-learning their ability to communicate with each other, couples may realise the value of what they have considered giving up to the extent that they will think again. (Lord MacKay, The Guardian 24.2.96)
The shift to mediation as the central plank of the new divorce proposals is shared by the Lord Chancellor, the Legal Aid Board and all major political parties. So despite the element of compulsion this was one of the few uncontentious provisions of the Bill in Parliament. Government faith in mediation was bolstered by selective reading of findings from a study by the Relate Centre for Family Studies at the University of Newcastle (1994). This study claimed positive results for mediation, with couples reporting they had reached agreed settlements, improved communications and found ways to continue being joint parents. However a closer reading of the study shows that its questionnaires were only returned by 54 users of ‘all issues mediation’, a self selecting group, all of whom had access to their own solicitors during mediation. Even then 20% failed to reach agreement on any issues, and only 39% agreed everything. An alternative survey conducted by the Solicitors Family Law Association (SFLA) found 48% of their clients would not feel comfortable with a mediated solution, less than 33% thought issues could be amicably resolved by a mediator.
The SFLA are further concerned by the fact that at present mediators are completely un-regulated. Anyone can set up a mediators ser-vice without any training or belonging to a regu-latory body. The Family Law Act does not deal with the regulation of mediators, but does pro-vide for the setting of standards for legally aided mediation work by the Legal Aid Board. How-ever, it seems as though mediation will remain unregulated where it is not paid for through legal aid. As yet, it remains unclear what any standards regarding mediation might be, and specifically to what extent they will address issues of cultural and language differences.
A second survey conducted by Relate itself (Feb 1996) found stronger opposition to mediation amongst family lawyers who had undertaken mediation training (82%), than amongst those who had not (61%). This survey concluded that the more lawyers are involved in mediation the more opposed they are to pushing people into it.
Sentiments expressed in these debates contrasted markedly with those expressed by ‘the right minded’ in relation to the most publicised divorce of the century. In relation to the Royal Divorce, Ruaridh Nicoll reported in the The Guardian 27.7.96 that:
(The Queen in December 1995) ‘urged the couple to stop speculating about their marriage and end it forthwith’.
The Queen and Duke of Edinburgh are thought to be keen for a swift end to the protracted divorce negotiations.
John Major ‘is keen to have the Royal divorce out of the way before the summer recess’.
Another case of one law for the rich and another for the poor ?
The assumption of equality
Feminists have criticised the discriminatory approach which makes mediation compulsory for people on legal aid, while permitting the better off to pay privately for legal representation. However feminist analysis goes beyond this by raising fundamental questions about the nature of mediation in the context of the gender power relations underpinning heterosexual relationships and their breakdown. The assumption of equality between women and men which underpins mediation results in it not being the gender neutral process it claims to be. Power imbalances in relationships do not evaporate because the couple is no longer living together or a decision has been taken to seek divorce. Mediators generally use the method of holding joint meetings with the separating parties. Their focus is on the future with past behaviour, including violence or abuse, being ignored or deemed irrelevant. A woman who has been worn down by previous arguments or humiliations, is not likely to want to negotiate with her ex. As Lorraine Radford and Marianne Hester have pointed out:
There is less scope for an abused woman to give ‘her story’ in mediation, where she may be sitting in the same room as the abuser. If she has no opportunity to voice her fears then conflict may well be increased rather than reduced following mediation because the woman will be exposed to unnecessary risk…
…Women’s fears at attending meetings tend to be interpreted as lack of co-operation. Because a woman has separated from the abuser it is assumed the violence has stopped and she is no longer at risk. In fact one mediator interviewed argued it would empower a woman if she was forced to confront her fears and meet the abuser… Most premises we visited in the research project lacked security facilities. Many made no provision for the safe entry and exit of women from the building. At one centre a woman was stabbed by her partner in the corridor when leaving. At another a woman was beaten up during a videotaped mediation session. (Lorraine Radford, ROW Bulletin Autumn/Winter 1994)
Where violence existed in a relationship, a man can resort to subtle threats to control a woman within the mediation setting, which may not be picked up by mediators. It is not surprising that women frequently experience mediation as disempowering, while men, particularly abusive men, find it strengthening. In this context, mediation can be a coercive process with women feeling trapped into ‘agreements’ which are not in her best interests through fear of her husband or pressure to appease a mediator. Further if the man can afford to instruct a solicitor privately, the situation can arise in which he may be legally advised throughout the mediation process, leaving the woman reliant on a mediator to protect her interests.
There is no empirical evidence from England and Wales regarding the effectiveness of mediation in relation to long term settlements. Evidence from other countries like Canada, Australia and New Zealand, where similar ‘reforms’ were introduced in the early 1990s, indicates that women gain less from mediated settlements than their former husbands. It seems a particular irony that by the 1990s, when women are beginning to realise their legal rights more effectively, with more women qualifying as solicitors and barristers, and more advice centres providing women- centred legal advice, the government is concerned to shift away from a legal rights approach for the vagaries of mediation.
Ignoring women and children’s safety
The forward looking rhetoric of mediation further serves to sweep aside women’s fears for their own and their children’s safety. Issues regarding domestic violence or child abuse, if raised at all, are frequently swept aside as past history. It is the mediator who has the power to decide whether or not mediation is appropriate.
With the best will in the world, mediators have a vested interest in funnelling clients to the services they provide, rather than towards solicitors. Not only is there a financial interest involved in bringing money into mediation … but also a desire to show that mediation works in cases of marital breakdown. And lastly, but not least, mediators are not usually legally qualified. Poor quality advice will inevitably impinge most on women, who will rarely have the resources to pay for a solicitor to safeguard their interests before accepting a mediated settlement, once more creating a power imbalance between the parties at a crisis point in their relationship. (Lorraine Radford, ROW Bulletin Autumn/Winter 1994)
If the mediator does not certify that mediation is inappropriate in certain cases a woman will have to convince a judge that she is not merely being obstructive to obtain legal representation. Despite an increasing acceptance of feminist arguments that domestic violence can not be mediated, it is not clear who will be excused from mediation. No firm commitment that mediation is unsuitable in the context of domestic violence has been made.
It is eminently clear that women will lose out in a process which replaces the protection of legal rights with mediated outcomes. Feminists have also expressed concern about the extent to which mediation addresses the welfare, safety and wishes of children. Since the Children Act 1989, welfare professionals have interpreted the best interests of the child as being served by contact with a father, even when the father has been violent or abusive to the child. Despite the fact that the Children Act includes the wishes of the children in its check list, few mediators in fact bother to ascertain their wishes by talking to them directly. In consequence, in England and Wales, children have to show clear signs of physical or psychological damage before contact can be stopped. Rights of Women has been working around this issue for several years and has found that inappropriate contact orders frequently put both women and children at risk of further violence, while there is no evidence that contact between children and violent fathers is of value to the child. Lorraine Radford also makes the point that ‘the overwhelming majority of women were further abused by their ex-partners as a result of contact arrangements.’
As a consequence of lobbying, the issue of safety and protection of children has been recognised in the Family Law Act in a clause which allows domestic violence to be considered as a factor in child contact considerations, although this same provision, by reintroducing ‘conduct’ as an issue, could also be used against lesbian mothers.
Pension splitting
Something needs to be said on the question of pension splitting as this was the major concession secured by the Labour Party in the last- minute compromises which saved the Family Law Act. When Paul Boateng reiterated his point that: ‘no Family Law Bill… will pass this House that does not have written on its face the regulations contained in our amendment’ the Government conceded and allowed pension splitting at the point of divorce. This will allow a woman to receive and reinvest a share of her husband’s pension, rather than having to wait until he retires. This provision is only likely to benefit those women who were married to men with good pension entitlements. It is interesting that the Labour party chose to take its stand on the pensions issue, rather than the denial of legal aid for legal representation, and the emphasis on mediation which will negatively affect far greater numbers of women. No doubt their sell-out on these points was a deliberate strategy to avoid being seen as not supporting ‘the family’.
Part 4 of the Family Law Act reinstates, albeit with some concessions to the far right, the provisions of the ill-fated Domestic Violence Family Homes Bill. Its aim is to stream-line and simplify the process of obtaining injunctions against violent husbands or partners, by providing protection orders, available from a single court for both married and unmarried women. Recognising that violence does not necessarily end with the formal ending of a relationship, it enables former spouses and cohabitants to use these remedies. It also strengthens injunctions or protection orders, as they will now be called, by making a presumption in favour of powers of arrest being attached. Surprisingly, expected hostility from the far right did not resurface in relation to Part 4 of the Family Law Bill. They were content with voicing rhetoric about the sanctity of marriage and warnings about male cohabitants being ousted from their homes on the basis of spurious allegations of violence.
While the specific details of these provisions remain too complex to summarise here, it is worth mentioning that this section of the Act also contains amendments to the Children Act 1989 allowing for the protection of children by excluding an abusive man from the home in interim care orders or emergency protection orders if :
- the court is satisfied there is reasonable cause to believe that, if the person is excluded, the child would cease to suffer or cease to be likely to suffer significant harm and
- the caring parent remaining in the home can provide reasonable care and consents to the exclusion requirement.
These provisions extend powers available to the court where a Local Authority makes application for emergency protection order or interim care order by allowing the abusive parent, rather than the child, to be removed from the family home. Although these orders can have powers of arrest attached, their efficacy is reduced by the fact they are short term solutions only. A Local Authority is not empowered to make free standing or long term applications for the removal of an abusing parent.
Bad news for wives
This article has not been able to cover every aspect of the new Family Law Act; Rights of Women has produced a comprehensive guide in the Summer 1996 Bulletin. However, from what has been said here, it is clear that with the exception of Part 4, the Family Law Act is not good news for married women. This is recognised by many family solicitors, one of whom has pointed out that because legal aid will still be granted for legal actions which start with injunction applications, there will be a positive incentive for solicitors to begin proceedings by seeking injunctive remedies, to get round the rules which disallow legal aid for legal representation in divorce.
Given the new hurdles to divorce introduced in the Family Law Act, presumably once word gets around women will respond by choosing to live outside of marriage. Given that legally there is increasingly less distinction between marriage and cohabitation, women may come to reject any form of institutionalised forms of hetero–sexuality, and possibly heterosexuality itself. Certainly at the present time, the best advice to women is that offered by Rights of Women and followed by Princess Di:
If you are thinking of getting married, be very careful, if you are thinking of separating — divorce now.
References:
Maragaret Greenfields ‘Divorce Made Simple? The Family Law Bill 1996’ (Rights of Women Bulletin, Summer 1996).
Marianne Hester and Lorraine Radford Domestic Violence and Child Contact in England and Denmark (Policy Press 1996).
HMSO Looking to the Future: Mediation and the Ground for Divorce Cmnd 2799 April 1995 (Government White Paper).
Jane Lewis Marriage Saving Revisited (Family Law, July 1996).
Lorraine Radford Domestic ‘Violence, Child Contact and Mediation’ (Rights of Women Bulletin, Autumn/Winter 1994).
Walker, McCarthy and Timms Mediation: The Making and Remaking of Co-operative Relationships (Relate Centre for Family Studies, University of Newcastle on Tyne, 1994).