1. The family law body 'Resolution' recently released a 'Manifesto for Family Law' which sets out their views on what the next government should do to improve the divorce process in England and Wales.
2. At present, unless couples have been living apart for two years, one of them needs to apportion some form of blame (either adultery, or unreasonable behaviour), in order to divorce. In 2012, there were over 72,000 divorces where adultery or unreasonable behaviour were cited and 'Resolution' argue that "people should not have to go through this blame charade to bring their relationship to a dignified conclusion and move on with their lives." This statement rather overlooks the fact that when a marriage breaks down, particularly as a result of adultery, blame is almost inevitable.
3. Resolution cite academic research which has "shown how the legal requirement to assign blame can undermine attempts to resolve disputes outside of court." This statement is drawn from 'Mapping Paths To Family Justice', an independent 3-year ESRC-funded academic research project undertaken by the Universities of Exeter and Kent. The project's central aim was to provide much needed evidence about the awareness, usage, experience and outcomes of 'out of court' Family Dispute Resolution processes.
4. The Government believes more couples could sort out their differences using mediation rather than going to court and couples are now required to attend a Mediation Information Assessment Meeting (MIAMs) before an application can be made to court. Although mediators are meant to carry out individual screenings with participants, prior to seeing them as a couple, this doesn't always happen. It is problematic because if power imbalances in a relationship are not identified in advance, the negotiation process and the subsequent settlement may be skewed.
5. The qualitative component of 'Mapping Paths To Family Justice' illustrates how some couples feel too raw and are simply not emotionally ready to engage in a collaborative process which requires face to face meetings with their ex-partner. As one participant explained... "His personality can be of a bullying tendency and I just felt that I could be in that room just being kind of talked at... And feeling bullied into backing down. So I was resistant (to mediation)."
6. Law practitioners who were interviewed for the study also reported that dominant characters, usually professional men, often deliberately chose mediation because they believed that they would be able to control their partners best in this process.
7. There was also a strong and regularly stated perception of gender bias in mediation. Many men felt that the process was biased against them and some women also felt that male mediators were biased against them, or that the system was now too biased towards fathers' interests.
9. Another significant problem is that agreements achieved outside court are not legally binding and unless they are approved (by the court) as a consent order, they are not enforceable either. Given that couples describe the process of mediation as 'emotionally upsetting' and 'nerve-wracking', the possibility that a divorce agreement might not be worth the paper it is written explains, in part, why publicly funded mediation numbers are down by 45%, and unrepresented parties coming to court are on the rise.
10. Making divorce a less toxic process is in everyone's interest, but while amicable divorces are desirable, they are not always achievable. Resolution suggest that couples would be better served by a divorce process where one or both partners could give notice that their marriage has broken down irretrievably. The divorce would then proceed and, after a period of six months, if either, or both partners still think they are making the right decision, the divorce is finalised. This would mean that when one partner wants a divorce, the marriage ends, regardless of what the other person wants. In this situation it strikes me that, rather than fast tracking the divorce process by forcing hurt and angry people to sit in a room with each other and try to do what they have clearly failed to do in their marriage (agree with each other), it would make much more sense to channel funding into counseling resources so that prospective divorcees could receive much needed psychological support before making, what will probably be, the most important decision of their life.