3.1. The Family Law Act proposed a radically new way of organising divorce. Since 1857, when divorce first became a practical possibility, it had been achieved through a professionally managed, largely fault based, process of litigation. Under the Act, this was to be replaced by a procedure which got away from fault and placed greater responsibility for control of the process on the parties themselves. At the same time, the Act gave strong impetus to the conciliatory settlement of related issues involving children, finance and property as opposed to seeking resolution through litigation.
3.2. In our view the objectives and basic structure of the Act were sound, promising to provide a divorce procedure greatly superior to the present arrangements. While difficulties with some features of the Act were revealed in the process of implementation, we were disappointed by the Lord Chancellor's announcement that he intends to repeal Part II of the Act. Once he has done so, the Government should move promptly, with the benefit of experience acquired over the last four years, to provide a robust legislative framework, capable of realising the objectives of Part I of the Act, to which the Lord Chancellor has expressly subscribed.
3.3. The Family Law Act 1996 implemented the recommendations made by the Law Commission in 1990, and developed in the White Paper Looking to the Future, that the only ground for divorce should be a statement of irretrievable breakdown followed by the passing of a period of time.
3.4. Under the 1857 Act, in order to obtain a divorce, a matrimonial offence had to be proved (a woman had to prove that the man had committed adultery compounded by desertion; the man only that the woman had committed adultery). The Matrimonial Causes Act 1937 added cruelty and desertion after five years as grounds for divorce. The move away from a fault-based divorce was initiated in 1966 through a report by a committee set up by the Archbishop of Canterbury which recommended that the doctrine of the breakdown of marriage was preferable to that of the matrimonial offence. The first step towards putting this into effect was taken in the Divorce Reform Act of 1969, which introduced irretrievable breakdown of the marriage as the only ground for divorce. This is the current state of the law. However, the breakdown still has to be evidenced by proving an 'offence' (adultery, desertion or unreasonable behaviour), unless the couple agree to divorce after living apart for a period in excess of two years, or after living separately for five years if one party objects. In other words, unless both agree to a divorce, (in which case it can be obtained by consent after a period of separation in excess of two years), the person who wants the divorce has to wait for five years or show irretrievable breakdown by proving the adultery or unreasonable behaviour of the other.
3.5. Approximately 70% of divorces are now sought on a fault base (adultery or unreasonable behaviour), a process which, unless defended, can take less than four months. For the remaining cases, where one of the couple disputes the divorce, the average length of time taken is 7 months. Few divorces are today are defended.
3.6. The Law Commission advised in 1990 the undesirability of a fault-based system, often necessitating a finding of fault against the person who does not want a divorce. Even if the finding of fault has become no more than a paper exercise, the process often does not reflect the justice of the case and requires a statement about past behaviour rather than a constructive focus on future arrangements and obligations.
3.7. The Family Law Act 1996 sets out in Part 1 the general principles underlying Parts II and III of the Act, which we reproduce at p.1 above. Part II, which is to be repealed, provided for the divorce process to be initiated by one or both spouses attending an information meeting. Once three months had elapsed, a statement of marital breakdown could be filed with the court, setting in motion a period of time for reflection and consideration before the granting of the divorce. This new regime, outlined by the White Paper Looking to the Future, and taken for granted in the framing of the Family Law Act, envisaged that the parties themselves should take central responsibility for decision-making during and following the 'period for reflection and consideration'. They would do this with a range of professional support (legal advice, mediation, counselling) in the background. This constituted an extremely radical departure from the arrangements for divorce entrenched over the years since 1857. The existing divorce is in its very nature based on an adversarial litigation model and has since its inception been typically obtained with the help of legal representation. Even where divorce is the agreed objective of both parties, it is still widely pursued by means of separate lawyers acting on behalf of each party.
3.8. Introducing a divorce process primarily managed by the spouses themselves, the Act nonetheless underlined the advisory function of lawyers. This was reinforced by a new provision making information available and an expanded role for mediation, which encouraged couples to negotiate face-to-face with the help of a mediator. So the objective of the Act was to reduce the representative role of lawyers in negotiation and in litigation.
3.9. In proposing a greatly expanded role for mediation, in accordance with the recommendation of the Law Commission in 1990, the Family Law Act required a profound cultural shift for both lawyers and the divorcing public. This was the case notwithstanding great changes, over the last two decades, in the approach of lawyers, the courts and the public to the divorce process and of finding better solutions to the consequences of a divorce. For example, the Code of Practice of the Solicitors Family Law Association (founded in 1983 to promote and encourage negotiated agreements rather than those imposed by the Court through litigation) has now modified long established working habits among family lawyers. Over the same period the courts have moved towards the active sponsorship of settlement, while mediation has grown rapidly in the voluntary sector.
3.10. The information provisions of the Family Law Act, based on the Law Commission's recommendations, presupposed that a more constructive approach to divorce could be encouraged by informing people about the law, the consequences of divorce and the services that could help. The provision of information was to mark the gateway to a period of reflection, and in the subsequent White Paper [Endnote 3] the Government listed a range of benefits of its proposals for reform. These would introduce a system which is better at identifying saveable marriages and facilitating referrals to marriage guidance, and which would enable couples to make workable arrangements through family mediation in respect of children, the home and other matters.
3.11. The claims made for these benefits were probably over-optimistic, as information meetings alone were unlikely ever to have delivered them. There are no simple links between increased knowledge and understanding and the increased use of services such as counselling and mediation. Attempts to encourage people to save their marriage within divorce legislation are unlikely to turn many people back, and expectations concerning the extent to which people facing divorce will behave in socially approved ways need to be modest.
3.12. While research on the pilots for the information meeting revealed a high level of satisfaction among the volunteer participants, there were clear shortcomings in the information models tested. The research showed that the extremely varied information needs of those potentially entering the divorce process could not easily be met by the particular models which were being piloted. People who attended the information meeting were at different stages in their relationship. Some were trying to decide whether their marriage was over; some had reached the stage where one party at least had already made the decision to bring the marriage to an end; some had separated many years earlier and wanted to know what procedures they had to go through to get a divorce.
3.13. An additional problem identified in the pilot studies was that only one of the couple had to attend the meeting and that this person was often wanting support and feedback about possible actions, rather than simply being given information. Nevertheless, the evaluation study found that the majority of those who attended an information meeting increased their knowledge and understanding of the impact of divorce on adults and children and achieved a greater sense of the kinds of services available to them. To a large extent, information provision and the new meeting with a marriage counsellor supported the principles of the Family Law Act. Some attendees reflected carefully on the steps they were taking and some made attempts to save the marriage; messages about reducing conflict and being conciliatory were understood and respected; and parents were helped to consider the needs of their children.
3.14. Attendance at an information meeting helped many people to make their mind up about getting a divorce and to feel more able to deal with the process. In our view, ending uncertainty can be seen as a positive outcome. Although the messages given in information meetings had to be slotted into complex and changing lives, some 90 per cent of attendees were positive about the experience.
3.15. The Board recognised that there were weaknesses with some aspects of information meetings, for example that there was mandatory information provision to only one party. Nevertheless it was the view of the Board, as recommended to the Lord Chancellor, that by the conclusion of the pilots the researchers had been able to construct a new model for the information meeting which could cope with the diversity of people's situations, within the terms of the Act. The fact that this revised model remained to be tested in practice was not a reason for failing to implement Part II of the Act.
3.16. The manner in which implementation of the Family Law Act was commenced made it very difficult for the pilots to provide the basis for assessing either the value of mediation (in terms of the "quality" yielded by the process and its cost compared with lawyer controlled processes) or the proportion of cases in which it might be appropriate. In the absence of the regime of party negotiated divorce contemplated by Part II, it was hard to get a sense of the role mediation might have played in the new order. Mediation was 'tested' under the current divorce process which relies heavily on fault based facts. In that context any attempt to determine the value of mediation as perceived by the parties or its consequences on the overall costs of a divorce under the new regime must remain very difficult to assess.
3.17. The Family Law Act embodied a shift from a professionally controlled process to one for which the parties themselves could take primary responsibility. Mediation was intended, in this changed environment, to support couples in their direct decision making and to facilitate resolving any disputes which might arise in that process. However, the Act perhaps embodied unrealistic expectations as to the extent to which mediation could 'replace' legal services in the divorce process with too much weight being placed on the mediator to provide generalised support for couples to aid their decision-making.
3.18. Even under the new, 'administrative' procedures contemplated by Part II of the Act, many divorcing couples need a range of different kinds of help. First, there is the need for independent legal advice at the outset of the divorce process and as it goes forward. Public funding for this was generously promised in Looking to the Future but only parsimoniously provided under the LSC's pilots. Second, many parties will probably also require help with the technical procedures entailed in obtaining a divorce. The report on the mediation pilots reveals unambiguously how highly many divorcing parties value help provided by their lawyers in the form of advice, partisan support and representation. Many people are not ready, or do not want, to be weaned off lawyer representation.
3.19. The Lord Chancellor has expressed his disappointment at the number of couples who took up the opportunity of mediation and the number of 'successful' mediations. This may have been based on too high an expectation of the extent to which mediation would be immediately embraced by the public once the Act was in force. In the absence of the implementation of Part II, while experience from other countries suggests that cultural factors make any predictions highly speculative, the researchers have suggested that a figure of 10-15% might have been achieved.
3.20. Further reasons for the number of people taking up the opportunity of mediation, following an information meeting, being lower than the Lord Chancellor expected can be found in the circumstances of the individuals concerned. For many there were no issues in dispute; it was too soon to make arrangements; partners were unwilling to attend; or there were practical difficulties. The timing of the assessment interview with the mediator required by the Act - at the point at which the parties seeking legal aid enter the divorce process - may also not be the most appropriate one for many couples as they are not ready at that point to negotiate about the decisions that have to be taken.
3.21. It is the Board's view that too much was expected too quickly of an embryonic institution without strong culture roots in modern Europe. It has taken time to develop a nation-wide network of service providers. These services now need the opportunity to develop their capacity to be able to deliver, and the public need time and education in order to embrace the concept of mediation.
3.22. Schedule 2 of the 1996 Act contained much needed reforms to Part II of the 1973 Act (financial provision & property adjustment orders) which will be lost by the repeal of Part II of the Act. The Board hopes that the Government will find a way of implementing these reforms.
3.23. The meeting with the marriage counsellor was tested in some of the information meeting pilot areas. This meeting was solution-focused, but was not counselling as such. Although nearly half of those who attended went in the hope of trying to save their marriage, significant numbers went to get help to come to terms with the ending of their marriage. This is not surprising given the fact that more than half of the people receiving an invitation to a meeting had already separated from their spouse and saving the marriage was unlikely to be a realistic option (although some did achieve a reconciliation). The meeting with a marriage counsellor was well received whatever the purpose for going. It enabled people to examine their situation and move forward either to try to save the marriage or to deal with the consequences of divorce. About half of the attendees went into counselling.
3.24. In terms of consumer and provider satisfaction, the new meeting with a marriage counsellor can be regarded as a success. Moreover, the meeting may have had an impact on the quality of spousal relationships. The meeting clearly has the potential to help people facing marriage breakdown to examine their options and decide what kinds of further help they need. The provision of this meeting will also be lost with the repeal of Part II, and the Board hopes that further thought can be given to ways in which similar kinds of provision can be encouraged.
3.25. Now that the Government has decided on the repeal of Part II of the Family Law Act, consideration must be given to a replacement for the surviving adversarial, partially fault- based regime. The serious defects of the pre-existing arrangements, which led the Law Commission to propose reform in the first place [Endnote 4], remain. We agree with the sentiment expressed in the White Paper, Looking to the Future, that longstanding procedures which, even in the event of agreement, "require the parties to sue each other and make allegations" in order to terminate marriage are no longer acceptable (paragraph 2.14).
3.26. It is the Board's firm view that the current fault based procedure is at odds with section 1 (c) of Part I of the Act. In practice, the necessity for a spouse wanting a divorce without having lived separately for a period in excess of two years to have to allege unreasonable behaviour or adultery by the other person, who may not want a divorce, can give rise to unnecessary conflict. The distress and anger caused to the latter may also have harmful fallout so far as the children are concerned. It does not "promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances". [FLA 1996 s.1 (c) (ii)
3.27. The action initiating the divorce process should remain the recording of a statement, by one or both parties, that the marriage has irretrievably broken down. As was to be the case under the Act, breakdown should be demonstrated "by the passing of a period of time" (Ibid., paragraph 2.34). There will inevitably be debate as to how long that period should be, and as to the conditions under which it should be capable of being reduced. We see no reason to depart from the twelve months originally specified in the White Paper, provided some agency is given discretion to reduce the period where appropriate. This designated period 'for reflection and consideration' should also fulfil the role intended for it under Part II, providing space in which decisions about the future (such as about children, residence, finance and property) can be made prior to dissolution.
3.28. It is our opinion that the divorce process should be sufficiently simple for most parties to be able to undertake it for themselves. While some couples will want to negotiate their own arrangements consequent to separation and divorce, most will require legal advice in doing so; this should be available. It is also clear from the research on the Mediation Pilots, that many couples will continue to want to put responsibility for negotiating their divorce and ancillary matters into the hands of lawyers. Here a form of Legal Aid certificate which encourages solicitors to negotiate agreement, without embarking on litigation, must continue to be available. During the course of its work the Advisory Board have come to a clear view that the roles of solicitors and mediators need to be seen as complementary.
3.29. As was the intention with the 1996 Act, litigation and adjudication by the courts should lie very much in the background. While the Divorce County Courts may well be the place where the statement of marital breakdown is filed, and continue to be the agencies which formally terminate marriage, the divorce process itself should be seen as an administrative procedure supervised by the judiciary rather than as 'litigation'.
3.30. Where a dispute arises and is litigated, there should continue to be an equivalent of section 13 of the Family Law Act, permitting the court to refer parties to hear about Alternative Dispute Resolution processes at an early stage. In children disputes there is already an early in -court conciliation appointment in which a court welfare officer is present, which provides an excellent opportunity for the couple to be given information about mediation. Where there is a financial dispute, the Family Proceedings (Amendment Number 2) Rules 1999 (implemented on 5 June 2000 after extensive piloting) requires a court led Financial Dispute Resolution meeting as part of the litigation process. A judge can adjourn the court proceedings at any time to enable the couple to attend mediation. This change of emphasis in the court rules and within the legal profession to one within which there is a formal role for Alternative Dispute Resolution processes is encouraging and, with time, may well bring about the cultural change necessary to recognise the important role of mediation.
3.31. The piloting and development of the information meeting took place against the background of continuing opposition to information meetings being compulsory as a pre-condition of entry into the divorce process. However, the research on the pilot information meetings has shown that people welcome being better informed and that there is a need for the provision of some kinds of information in a period before the divorce process is started. There is a strong case for making information easily available to people in formats that are simple to understand. With the intended repeal of Part II careful thought should be given as to how and when information about the divorce process, the effect on children; marriage counselling; and mediation can best be provided.
3.32. There is a separate question as to whether attendance at an information meeting should be a pre-condition of entry into the divorce process. The research on the information meetings identified some options for consideration ranging from a new kind of mandatory meeting for all; mandatory provision only to parents with dependent children; an information-registration process; or a voluntary meeting. An important consideration was how to ensure that both parties had access to the information. The Board has an open mind on which of these options would be best but noted that the research found considerable support for making information provision compulsory for parents with dependent children. Experience in other countries also gives support to a focus on parenting education and information.
3.33. Mediation was placed in the foreground under the Family Law Act as part of a move to encourage the handling of divorce in a conciliatory manner. The Board wholeheartedly endorses this approach and welcomes the moves that lawyers have made towards working in a conciliatory way. But it is keen to stress that it does not see being conciliatory as synonymous with mediation. It is also to be welcomed that through Part III of the Act individuals with insufficient income who wish to use mediation can now get public funds to do so.
3.34. The Act placed mediation within a legal environment where it appeared to replace all but the advisory role of lawyers. As we have said, this is probably the wrong way to perceive mediation's contribution. The Report to the Legal Services Commission on Monitoring Publicly Funded Family Mediation suggested that it would be more appropriate to regard mediation as either an aid to private communication and decision making by the parties or as being invoked by the court to facilitate settlement of contested legal proceedings. We consider this dichotomy too stark; the essential contribution of the mediator - to facilitate party decision-making -is the same in the private sphere and in a court-linked process. We consider that mediation can valuably play both these roles.
3.35. Small changes have already been made to the original arrangements under the Act. For example, the Government has already decided that assessment interviews for mediation should not be compulsory where it is clear that both parties cannot or will not attend. This is welcome in that scarce resources can be reserved for the people who are more likely to benefit. But in the longer term further thought probably needs to be given to the future possible roles for mediation.
3.36. The experience of the information meetings pilots suggests that many people do not know what mediation is or what it has to offer. Without the information meetings to provide this, people will remain in ignorance. The importance of the Government's commitment to continuing to actively promote mediation cannot be stressed enough. The ignorance of mediation demonstrated by the media when discussing the Lord Chancellor's decision to repeal Part II clearly shows that there is a long way to go in public education before the concept of mediation is generally understood.
3.37. The concept of saving saveable marriages is admirable. But the experience of the meeting with the marriage counsellor suggests that for most people the point when they are beginning to take action to initiative a divorce is much too late to save their marriage. Retaining the meeting with the marriage counsellor as part of the package of help available to those contemplating divorce could well be an important part of a conciliatory divorce and of bringing the marriage to an end with the minimum of distress. Whatever is put in place of the repealed Part II should draw on this experience.
3.38. If the Government is serious about saving saveable marriages then further consideration also needs to be given to ways of helping individuals whose relationships are in difficulty at much earlier stages. Such help is not just needed by those who are married as unmarried people in committed relationship or who are parents have similar needs. Prevention is better than cure in these circumstances.
Looking to the Future: Mediation and the Ground for Divorce: The Government's Proposals, Cm 2799 (1995).
The Ground for Divorce (London: HMSO, 1990) Law Com 192.