A piece in yesterday’s Times:
Senior judicial figures have called for an end to “unjust” and “outdated” divorce laws as The Times begins a campaign to modernise family legislation.
Lord Mackay of Clashfern, the lord chancellor to two prime ministers, and Baroness Butler-Sloss, the former lord justice of appeal and president of the High Court family division, join other legal grandees to condemn the “antediluvian, damaging” 50-year-old laws governing marital break-ups. They are backing this newspaper’s demand for sweeping reform, including:
• The abolition of the need during divorce proceedings to allege fault or blame, which has caused people to remain locked for years in loveless marriages.
• The end of the so-called meal ticket for life maintenance awards.
• Statutory backing for prenuptial contracts.
The call comes two weeks after a report by the Nuffield Foundation, which condemned divorce laws in England and Wales for forcing couples to make false and exaggerated allegations of adultery or bad behaviour, causing bitterness and harming the mental health of children.
Baroness Shackleton of Belgravia, the barrister for several senior royals, and Baroness Deech, the former chairwoman of the Human Fertility and Embryology Authority, are also among those backing divorce reform as part of The Times’s Family Matters campaign, which joins forces with the former High Court judge Sir Paul Coleridge to push for new laws to modernise and protect marriage.
Sir Paul, chairman of the Marriage Foundation, an organisation that has pushed for more support for couples experiencing marital difficulty, in an attempt to stem the tide of family breakdowns, said that the institution needed to be for “everyone from all walks of life, not just the better off”.
He added: “We must urgently do something about the laws on marriage and divorce. These are antediluvian and no longer fit for purpose. Our chief concern is to address the impact of the breakdown of relationships, particularly where there are children. These breakdowns have devastating consequences for both adults and children that can last for decades.”
Although laws should ease the pain of the separation process, they do the opposite, according to Sir Paul. “They fuel acrimony, hostility and pain — and make good long-term relationships between two parents caring for children impossible.”
Lord Mackay, who as lord chancellor under Margaret Thatcher attempted the last reform of divorce laws, said that he still supported change and removal of the need to allege blame. He is among many to have been concerned by the recent case of Tini Owens, who has been refused a divorce from her millionaire husband despite the couple living apart for almost three years.
“Marriage is a two-sided arrangement and involves children as well,” Lord Mackay said. “Unless both parties are willing to continue, it is difficult to have anything that can properly be called marriage.” The need to allege fault had a “corrosive effect on relationships”, he said. “It does not help to heal in any way… and of course [it] is very damaging to the children.”
Lord Mackay’s reforms reached the statute book as the Family Law Act 1996 despite a storm whipped up by Tory MPs and in the tabloid press. “There was concern that it undermined marriage,” he said. “But people did not understand how it worked. All it was doing was removing the unnecessarily provocative material from the separation.”
The act was approved by parliament 20 years ago and had the backing of Cardinal Hume, then the most senior Roman Catholic in Britain, as well as the Church of England. It was never implemented and was removed from the statute book by David Cameron’s coalition government. “Every year that passes is doing unnecessary damage to the possibility of satisfactory arrangements on breakdown,” Lord Mackay said.
Baroness Hale of Richmond, president of the Supreme Court, and Sir James Munby, president of the High Court family division, are known to favour reform. Sixty per cent of divorces in England and Wales are based on allegations of fault — ten times the number in Scotland or France, the Nuffield report says. Elsewhere fault has largely been abolished.
Lady Butler-Sloss, who sits as a crossbench peer, said: “The law on divorce is unsuitable, hypocritical, out of date, unfair, unkind . . . and very damaging to the children.” Allegations of fault “immediately raise the temperature, needlessly”.
Lady Shackleton said: “The pendulum has swung far too far in the direction of vesting control in the judges rather than parliament. Reform is urgently overdue.”
Sir Alan Ward, a former Court of Appeal judge and family specialist, said: “The disconnect between the letter of the law and the practice is now risible. The law was last reformed 50 years ago. The changes since then have transformed all social values, from behaviour towards women to the religious imperative requiring the upholding of the sanctity of marriage as a vital foundation of public morality.”
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