Joanna Bogle looks at the implications of Lord Mackay’s impending review of current legislation

As the debate has continued over the Lord Chancellor’s Family Law Bill, the reality of what it will mean has become clearer. This is the first major change in the law since the 1969 Divorce Act, and it liberalises the law still further

We can expect a rise in the number of divorces – we already share with Denmark the dubious distinction of having the highest divorce rate in Europe – and supporters of the Bill have been reduced to claiming merely that its provisions will take the acrimony out of the legal proceedings. This is wishful thinking. It rests, in any case, on the assumption that it is the procedures of divorce, rather than the divorce itself, which cause anguish and distress to those involved. In fact, it is the destruction of the home and the family identity that causes deep-rooted and long-term damage and pain, especially to the children. This damage is recognisable, identifiable and unforgettable. Making the divorce procedures speedier or seeking to limit people’s access to lawyers will not necessarily remove the pain. and could cause further injustice – which in turn means more acrimony, not less.

The provisions of Lord Mackay’s Family Law Bill ensure that a spouse who wants to remain married, who has been faithful and believes that reconciliation is possible will be under pressure to concede terms for a divorce. The emphasis on “mediation” – not the same as reconciliation – puts the innocent party at risk. Mediation specifically excludes reconciliation, and is merely an attempt to make arrangements for the property. children, etc, without lawyers. It involves a commitment to a recognition that the marriage has ended. A party seeking reconciliation could be regarded as obstructionist and could even (under schedule 1) be divorced against his or her will.

The Bill does not tackle one glaring area of injustice – that of divorce settlements. At present, where a woman leaves her husband for another man a court will almost invariably ensure that the children remain with her. Her husband will be obliged to finance the new arrangement, and under the Child Support Act is given no guarantees of seeing his children while being forced to pay for them to live with another man – a situation of highest risk for them. There have been over 30 suicides of men directly attributable to the Child Support Act system, some of them receiving wide publicity. There is an urgent need for action here.

The Mackay measure enshrines the notion of “no fault” divorce, which has caused so many problems since its introduction in the 1960s. It is an idea which is out of date, unhelpful, and impractical. It establishes a double standard in society, where contracts in other areas of life – business, housing, employment etc – are seen as binding, but the marriage contract is not. It teaches a younger generation that in personal decisions people do not need to take full responsibility for their actions, and can break a solemn promise without penalty. This has made a powerful contribution to the cynicism, insecurity, and sense of powerlessness all too evident among the young.

We badly need divorce reform but not Lord Mackay’s reforms. We need to look at divorce in a more honest and realistic way, and specifically from the view of the children involved. The Children’s Act should give a child the fundamental right to live with his or her two married parents: if they divorce this right should still be recognised as fundamental and ensured by giving the child equal and regular access to both parents unless their are compelling reasons why this should be prevented. Above all, a child should be protected from being placed in the situation of highest risk – that of being obliged to live with its mother and her live-in lover. The detailed report “Broken Homes and battered children’ (Family Education Trust. Oxford, 1994) analysed the frightening pattern of abuse of children living in this situation.

The churches must not indulge in wistful platitudes: for instance, their spokesmen should be wary of calling for more funding for counselling services in general. and must instead be specific in urging that funds go to groups committed to male/female lifelong marriage (yes, these days we do need to spell it out) and with some track record of success. Any call for marriage preparation classes or for “marriage education” in youth groups or schools should also specifically include that m-word. It has become a fashionable cliché

Joanna Bogle, Family Welfare Unit, Order for Christian Unity