Frank Young: New divorce laws. The Government should produce new plans to help marriages – not just …
Frank Young is Head of Family Policy at the Centre for Social Justice
Despite commentators telling us that marriage is going out of fashion, reforms to the institution of marriage seem to produce some of our most heated political arguments. And so it was last week, as the Government announced more reform to marriage, focusing political attention on an institution that we are told is no longer particularly relevant.
None the less, the Government will this year spend over £1 billion on the Marriage Allowance – not a small amount for an institution that is seemingly old hat in political circles. When we ask the public for their view, three in five (60 per cent) adults agree that ‘divorce is too easy’. The idea that even uttering the word “marriage” is taboo isn’t reflected in what people (the ones who live and work far away from the Westminster bubble) actually think. Over two thirds (67 per cent) of adults agree that ‘marriage tends to be the most stable environment in which to raise children’ and even more (approaching three quarters – 71 per cent) think ‘marriage is important and the Government should support couples who get married. Even a majority of young people (aged 18-24) agree that marriage is important.
The Government has now formally announced plans to bring forward a White Paper to legislate for no-fault divorce, following a consultation last year. This after a long campaign by family lawyers stretching as far back as the mid-1990s and the passing of the 1996 Family Law Act which introduced the concept of no-fault divorce. The provision lay dormant for years until the The Times picked up the campaign and pushed government into making this their flagship family policy.
It remains to be seen if the Justice Department’s enthusiasm for new legislation will be matched by government business managers and the ability of the current government to get any legislation through. The legal process of divorce law may excite family lawyers, but surely the solution to the problems of divorce lie in practical support, rather than trying to get legislation through a belligerent Parliament that is in no mood to agree on anything at all.
The CSJ wrote to the department during this consultation to express concerns that ‘no fault’ divorce really means unilateral divorce (whereby one partner can divorce the other against their wishes) and asked the Government to review the likely impact of this. The framing of debates really matters, and when we talk about no fault divorce it certainly sounds harmless enough.
We also questioned the department to look carefully at how many people would be caught out by these proposals who would otherwise want to remain married, but would none the less end up being divorced against their will and face the costs of separation. In a recent survey of a thousand divorcing couples, approaching half of those surveyed who had been identified as being at fault by their spouse disagreed with the reasons cited for the marriage breakdown.
And we expressed concerns that the ability for one party to divorce the other party within a marriage with no notice or ability to contest is likely to harm individuals when circumstances change suddenly for the worse. Reasons could be related to unemployment or disability, where despite ‘in sickness and in health’ and ‘for better or for worse’, one partner is no longer the attractive proposition they once were (arguably just at the point at which they need the support of a partner). We asked the Government to commit to reviewing this, and being up front about the number of marriages in which one party is simply being divorced without any say in the matter.
We were, and remain, worried about the impact on one partner who has made a significant sacrifice within a relationship (most likely to be a woman who has given up work to raise children) based on that commitment and is then vulnerable to unilateral divorce.
The biggest concern, however, is how unbalanced these proposals are – overlooking the need to support couples and prevent marriage breakdown in the first place. Tinkering with the law is easier than putting together plans to support couples before a relationship becomes unsalvageable. Despite the Government’s ongoing support for marriage, there is no presumption that a relationship can be recovered with support. This makes assumptions that relationship breakdown is inevitable.
Evidence from surveys of couples who have divorced find that more than a fifth of divorcees regret their divorce and the relationship. The relationships charity, Relate, found that one in ten couples who have been through the process of divorce told them that, with the right support, they would have been able to save their relationship and stay together. That is one in ten who have seen their relationship deteriorate to the point of seeking divorce. Through simply looking at legal process (in a campaign led by lawyers) these proposals overlook effective policy interventions to support couples.
Setting out his proposals, David Gauke announced that the government will “always uphold the institution of marriage”. As things stand, we spend about £30 on relationship support for each married couple in England and Wales. The 1996 Family Law Act actually contained an overlooked provision for marriage support services. Section 22 of the Act directed the Government to commit to conducting research into how we could prevent separation (long before the phrase “what works” was invented) and to fund services to help couples in times of need.
When we responded to the consultation, we made it clear that any new legislation should update Section 22, and include proposals that do something to prevent family breakdown – a so-called ‘mend it, don’t end it’ clause.
There is very little point in intervening at the end of relationship, and trying to revive a relationship that has become toxic. The Government shouldn’t simply point to its £30 per couple and say “job done”. These wonky plans fiddle with legal frameworks, but do little to support married couples. To help Ministers searching behind the back of departmental sofas for extra cash we have identified over £150 million currently being spent on the little known “Married Couples Allowance” (different to the “Marriage Allowance”) which could be ring fenced for this support.
If these reforms are introduced, the Government should think carefully about how changes to the process of divorce is matched with support for married couples. We will be making this case again. The words of comfort from Ministers that they are as committed as ever to protecting marriage need to be backed up with deeds, and a ‘mend it, don’t end it’ clause is a good place to start.