Divorce Reform Act 1969 Anniversary

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October 23, 2009

WE should all be raising glasses this week to celebrate the 40th anniversary of the Divorce Reform Act 1969 gaining royal assent.

The landmark statute made annulments easier, introducing what became known as “quickie divorces“. It eliminated the previous extensive, fault-based procedure, was a milestone for women’s rights, and its momentous implications are still being felt today.

On the statute’s birthday, however, I am horrified to note that the divorce wind now appears to be blowing in the opposite direction, with prominent commentators suggesting annulment should be made harder and settlements less favourable to ordinary women.

Baroness Ruth Deech, who chairs the Bar Standards Board, has, for example, slammed the system as “unfair to men” and is advocating reforms that would make maintenance laws less generous to women.

And Every Family Matters, a report recently prepared for the Conservative Party by Iain Duncan Smith’s Centre for Social Justice think tank, has proposed reforms which would have the same effects. The organisation has suggested compulsory “cooling off” periods for couples set upon annulment, and a “more narrow definition” of what constitutes a party’s “reasonable needs”, if a case proceeds.

As a divorce lawyer with 27 years experience, I fear for women whose marriages break down if Baroness Deech has her way or the Conservatives win next year’s General Election – which appears likely, in the present climate.

I have no political affiliation, but to my mind, Every Family Matters is a throwback to Victorian times. It applies an old-fashioned mindset to divorcing couples, ostensibly for the benefit of their children.

The hapless offspring apparently deserve to have their parents living together in the same house, regardless of the misery, arguments, infidelity or trauma this causes.

The introduction of a three-month “cooling-off” period would make divorce more difficult, and a proposed nationwide network of family counselling centres would provide advice, with the aim of encouraging couples to stay together.

This begs the question: does the fact of marriage hold couples together? I do not think it does. A decision to divorce is not taken lightly. The husbands and wives who instruct me to proceed do not do so at the drop of a hat, and do not need nannying. They have already spent plenty of time “thinking”.

In my experience, clients going through divorces are always emotionally traumatised.

The “quickie divorce” may get a bad press from those who feel it degrades marriage, but common sense dictates that the annulment
procedure should be as simple and short as possible. This allows parties to look forward to their futures, rather than back at what has gone wrong.

As for the relatively stingy settlements Baroness Deech advocates, it is easy to take a few isolated, big money cases and complain that the wives did not deserve such generous payoffs. But what about the tens of thousands of women who are less wealthy and have diminished career opportunities because they have been busy raising families? They would be the losers here.

I would take the admirable principles behind the 1969 Act further. The procedure would be simplified, not made more complicated. There would be no need for allegations of unreasonable behaviour or adultery, nor enforced waiting periods of separation.

Perhaps a new procedure could include, as a first step, the registration of one party’s wish to divorce, which would be followed by the suggested “cooling-off” period.

During this time, the arrangements for the finances and children could be dealt with and, at the end of the period, the divorce could be made absolute and final.

Reforming the law in this way would not increase the divorce rate, as more people are choosing not to marry at all. One reason for this is no financial consequences arise should a cohabiting relationship breakdown.

The law also needs reform, however, to provide protection to cohabiting partners and children born into such a relationship. The court will not allow a divorce to proceed until it is satisfied about arrangements for the children’s care.

This is not the case in cohabitation disputes, where children do not have to be brought to the court’s attention and slip beneath the radar.

Notably, Every Family Matters declines to propose increased rights for cohabiting couples or their children.

In the 40 years since the Divorce Reform Act was granted royal assent, society has changed beyond recognition. A family unit comprising a working father, stay-at-home mother and two children is no longer the norm.

Couples are marrying later and, in many households, there are fewer children. We also now have many different types of family unit: there are many more step-parents and step-children, as well as same-sex parents.

Reformers who aim to turn back the clock are, therefore, simply out of touch with modern realities, and I for one hope their cause does not succeed.

 

Marilyn Stowe is the founder of Stowe Family Law LLP.