The Times (Britain)
13 February 2006
Divorced from the realities
By William Rees-Mogg
Our laws on marriage break-up were framed for a completely different age.
They must be changed
There is a crisis in English divorce law. The truth is that it was framed in
a different age, on different assumptions, by lawyers and politicians we might now regard as dinosaurs, and in entirely different social conditions.
Our divorce laws fail to engage with many, if not most, of the realities of modern life. As a result, the break-up of a modern marriage has become a lottery that pays out injustice, suffering and personal damage to parents, children and in-laws alike.
We read in our newspapers about celebrity divorce cases such as those of the Millers or the MacFarlanes, both of which have recently been heard in the House of Lords. In these cases wealthy couples are concerned, with disputed assets in the millions. And while the law lords may derive from them new guidelines on the division of assets for millionaires, that will do little for the hundreds of thousands of ordinary people who get divorced every year. The vast majority of them have few assets to divide. Divorce may well be a financial as well as a personal disaster.
I started to note down the social realities that are not adequately addressed in our present doctrine of divorce. They do not link together in any convenient, logical order, but they do represent the reefs and shallows that have to be negotiated. I will simply copy out my notes, which certainly
leave out as many issues as they include.
"Costs of litigation. Rise in property values. Change in expectations. Change in matrimonial roles. The multicultural society. Religious differences. Employment and earnings of women. The mediation service. Choice of jurisdictions. Access of fathers to children. Pre-nuptial contracts. 'No fault' divorces. Civil partnerships. Long-term impact on children. Length of marriage. Length of previous partnership. Separation of partnerships, other than civil partnerships. Pension rights. Impact of rising longevity. The press freedom to report. Change in attitudes to extra-marital sex. Change in attitude to physical violence. Acceptance of promiscuity. The abuse of children. The 50-50 split. The share of future earnings. Tax treatment of marriage. Decline of the extended family. Grandmothers in full-time employment, unavailable as child-carers. Impact of care for the elderly. Impact of drink and drugs. Impact of modern working hours."
That, at any rate, sets down 32 issues relating to marriage and divorce on
which there is no social consensus. Any one of them could provide enough material for a substantial debate in Parliament. None will be resolved merely by minor adjustments to the existing law by the courts. All of them
now have a different impact from the 20th-century norm.
There is an almost complete mismatch between modern social reality and our inherited divorce system. Many of these impacts affect marriage itself and will also affect the new institution of civil partnerships. If my list is to be criticised, it will be for its omissions; I do not doubt that an experienced divorce lawyer would find many significant items to add to it.
I will not attempt to argue the merits of different possible legal solutions
to these undoubted problems. Many of them exist in other jurisdictions. English law has not solved the problems of proper access for fathers to their children, but nor has American law. This is a real problem, however
disgraceful the conduct of Fathers For Justice may have been. "No fault"
divorces produce some obviously unjust results, but so did divorces based on determining who was the " guilty party".
The division of assets in the eventual divorce stage of civil partnerships
will have to be worked out on its own. Pre-nuptial contracts might well be
appropriate in those cases in which one member of the civil partnership is
much wealthier than the other. Would the law allow for that? These are all
difficult problems, and the happiness of many human beings, including many
children, depends on their solutions. I know men and women among my contemporaries who still suffer from the trauma of badly handled divorces that occurred 60 or even 70 years ago.
Perhaps we should look back to the practice of the 19th century. In 1800 England was still an unreformed society in respect of many of its institutions. We were not yet a democracy, we had a King with real power, an unreformed House of Commons, an unreformed House of Lords, a Civil Service run on patronage and sinecures, an Army in which promotion could be bought, a brutal criminal and prison system, no votes and few property rights for women, no national system of education or healthcare. Eighteenth-century England had great energies and great beauty but it needed almost universal reforms.
Most of these English institutions were reformed in the 19th and early 20th
centuries. The reforms were planned and carried out by parliamentary action
after careful inquiries, sometimes by royal commissions. This process continued through the first half of the 20th century, but largely fell out of use in and after the 1960s. Such inquiries as continued lacked the authority of royal commissions and were often disregarded, or used by ministers as excuses for delay.
There is no department, nor any single profession, that has the capacity to
produce a divorce reform report. Parliament itself would need a basis of Acts and informed evidence. Reform would partly be a legal question, but it goes far wider than that. Reform should be based on social, financial, religious and moral judgments of the broadest kind. Yet our divorce system does need reform. Each year divorce brings suffering
and separation to 130,000 families, which means about 500,000 people, half of them children. The system is neither modern nor fair, nor does it fit the realities of contemporary life. A good, broadly based Royal Commission on Divorce, followed by a Reform Bill, would be the best way to lay the foundations for reform.
13 February 2006
Divorced from the realities
By William Rees-Mogg
Our laws on marriage break-up were framed for a completely different age.
They must be changed
There is a crisis in English divorce law. The truth is that it was framed in
a different age, on different assumptions, by lawyers and politicians we might now regard as dinosaurs, and in entirely different social conditions.
Our divorce laws fail to engage with many, if not most, of the realities of modern life. As a result, the break-up of a modern marriage has become a lottery that pays out injustice, suffering and personal damage to parents, children and in-laws alike.
We read in our newspapers about celebrity divorce cases such as those of the Millers or the MacFarlanes, both of which have recently been heard in the House of Lords. In these cases wealthy couples are concerned, with disputed assets in the millions. And while the law lords may derive from them new guidelines on the division of assets for millionaires, that will do little for the hundreds of thousands of ordinary people who get divorced every year. The vast majority of them have few assets to divide. Divorce may well be a financial as well as a personal disaster.
I started to note down the social realities that are not adequately addressed in our present doctrine of divorce. They do not link together in any convenient, logical order, but they do represent the reefs and shallows that have to be negotiated. I will simply copy out my notes, which certainly
leave out as many issues as they include.
"Costs of litigation. Rise in property values. Change in expectations. Change in matrimonial roles. The multicultural society. Religious differences. Employment and earnings of women. The mediation service. Choice of jurisdictions. Access of fathers to children. Pre-nuptial contracts. 'No fault' divorces. Civil partnerships. Long-term impact on children. Length of marriage. Length of previous partnership. Separation of partnerships, other than civil partnerships. Pension rights. Impact of rising longevity. The press freedom to report. Change in attitudes to extra-marital sex. Change in attitude to physical violence. Acceptance of promiscuity. The abuse of children. The 50-50 split. The share of future earnings. Tax treatment of marriage. Decline of the extended family. Grandmothers in full-time employment, unavailable as child-carers. Impact of care for the elderly. Impact of drink and drugs. Impact of modern working hours."
That, at any rate, sets down 32 issues relating to marriage and divorce on
which there is no social consensus. Any one of them could provide enough material for a substantial debate in Parliament. None will be resolved merely by minor adjustments to the existing law by the courts. All of them
now have a different impact from the 20th-century norm.
There is an almost complete mismatch between modern social reality and our inherited divorce system. Many of these impacts affect marriage itself and will also affect the new institution of civil partnerships. If my list is to be criticised, it will be for its omissions; I do not doubt that an experienced divorce lawyer would find many significant items to add to it.
I will not attempt to argue the merits of different possible legal solutions
to these undoubted problems. Many of them exist in other jurisdictions. English law has not solved the problems of proper access for fathers to their children, but nor has American law. This is a real problem, however
disgraceful the conduct of Fathers For Justice may have been. "No fault"
divorces produce some obviously unjust results, but so did divorces based on determining who was the " guilty party".
The division of assets in the eventual divorce stage of civil partnerships
will have to be worked out on its own. Pre-nuptial contracts might well be
appropriate in those cases in which one member of the civil partnership is
much wealthier than the other. Would the law allow for that? These are all
difficult problems, and the happiness of many human beings, including many
children, depends on their solutions. I know men and women among my contemporaries who still suffer from the trauma of badly handled divorces that occurred 60 or even 70 years ago.
Perhaps we should look back to the practice of the 19th century. In 1800 England was still an unreformed society in respect of many of its institutions. We were not yet a democracy, we had a King with real power, an unreformed House of Commons, an unreformed House of Lords, a Civil Service run on patronage and sinecures, an Army in which promotion could be bought, a brutal criminal and prison system, no votes and few property rights for women, no national system of education or healthcare. Eighteenth-century England had great energies and great beauty but it needed almost universal reforms.
Most of these English institutions were reformed in the 19th and early 20th
centuries. The reforms were planned and carried out by parliamentary action
after careful inquiries, sometimes by royal commissions. This process continued through the first half of the 20th century, but largely fell out of use in and after the 1960s. Such inquiries as continued lacked the authority of royal commissions and were often disregarded, or used by ministers as excuses for delay.
There is no department, nor any single profession, that has the capacity to
produce a divorce reform report. Parliament itself would need a basis of Acts and informed evidence. Reform would partly be a legal question, but it goes far wider than that. Reform should be based on social, financial, religious and moral judgments of the broadest kind. Yet our divorce system does need reform. Each year divorce brings suffering
and separation to 130,000 families, which means about 500,000 people, half of them children. The system is neither modern nor fair, nor does it fit the realities of contemporary life. A good, broadly based Royal Commission on Divorce, followed by a Reform Bill, would be the best way to lay the foundations for reform.
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