VANESSA FOX: Divorce and the need for mediation

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Divorce has been around for a long time.

Although initially it was in the main the preserve of kings and people of wealth, Henry VIII being a classic example, in the last 150 years it has increasingly become a part of our culture.

The Matrimonial Causes Act of 1857 paved the way for legal divorce, but again privilege, scandal and disgrace were often a feature, with divorced wives often losing contact with their children and having their place in society irreparably damaged.

Divorce as we know it today took its shape from the Divorce Reform Act in 1969.

Although considered revolutionary by some at the time, it still means today that grounds for divorce on irretrievable breakdown have to be based on five ‘facts’ which are defined as: adultery, behaviour, desertion, two years’ separation with the consent of the other party or five years’ separation with no consent.

The reasons people divorce are manifold and of course individual to them and can include any number of complex personal reasons – these have to be defined by the pre set criteria. As a result, “unreasonable behaviour” is the main ground cited.

The very term ‘unreasonable behaviour’ has a contentious feel to it and striking a balance to justify the grounds for divorce without creating an atmosphere of conflict and accusation can be very difficult, and some might say impossible.

The “no fault” divorce plans in the 1990s, which formed part of the Family Law Act 1996 and were later abandoned, have for now sunk without trace.

In a new development, this week, the government announced that divorcing couples choosing to use the courts, with the exception of those that involve domestic violence or child protection issues, will have to go through a compulsory attempt at mediation first – from next month.

So are we moving forwards, backwards, sideways or standing still?

This proposal also comes at a time when the government’s new Legal Aid proposals are being finalised, a feature of which will be the reduction of the limit of assets to qualify for legal aid in family cases from £8,000 to £1,000, a threshold that will affect those on the lowest incomes in a time of real need.

Most couples will face a charge for a compulsory attempt at mediation. With perhaps little or no financial support to seek much-needed legal advice at a vulnerable and difficult time for many people, do these proposals represent real reform and the best way to move forward?

It is undoubted that mediation as a process can be very successful in helping with the pre divorce resolution of all issues. However, much of that success depends on the fact that couples enter into mediation voluntarily, with a will to sort their issues out together amicably.

It may well be a move back to former times if divorce and access to the courts became more easily accessible to, or the preserve of, the well to do.

These latest proposals seem another attempt to tinker with a system which is far from ideal, rather than dealing with the main issues. The consequence will be a large increase in individuals going to court without solicitors, a situation which seems very likely to create delay and difficulty for everyone who is involved in the court system, and who seeks redress from the court.

In reality few people divorce without much thought and heart searching and we do need to have a new divorce law that acknowledges this.