Undercurrents of Divorce

Shelley Day Sclater, Christine Piper

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780367197117
• eBook ISBN: 9780429515910
• Topic: Law
• Subtopic: Family Law
• Index: Law

Published in 1999. Despite considerable comment about divorce reform and the post-divorce family, in the press and in academia, by professionals and politicians, much has been left unsaid. There are 'undercurrents' of divorce which are not visible and are not discussed because they do not fit into the dominant discursive framework for talk about divorce. This book brings these undercurrents to the surface and does two things. It explains how and why aspects of divorce and the lives of those divorcing, have become marginalized in professional and political discussion and it makes visible the practical and legal effects of such exclusion. It argues that there are good policy reasons for this particular socio-legal critique at this time, as the implementation of the Family Law Act 1996 gets underway.

Part I
Introduction

1
The Family Law Act 1996 in Context

SHELLEY DAY SCLATER AND CHRISTINE PIPER

Divorce has been talked about ad nauseam by politicians, the media, a wide range of professionals and religious leaders. What else is there to say? Within the terms of the public debate, it seems, nothing, except more of the same. The preliminaries to the implementation of the Family Law Act 1996 are well underway. It crystallises a vision of the post-divorce family as harmonious and enduring, a vision which first found legislative expression in the Children Act 1989, a vision which emerges from a particular discursive framework that takes as axiomatic the need to reduce divorce-related ‘conflict’ and to encourage both parents to remain involved with their children. Talk about divorce within the public arena has, therefore, been constrained by a set of ‘gate-keeping’ principles of this nature; the ideas which have entered the public domain have been those which fit the dominant discursive framework. The result is that much has been left unsaid. It is the purpose of this book to address those silences and to give voice to a range of ideas which challenge the dominant discourses and provide new ways of thinking about divorce as both a social phenomenon and an individual life-event.

To achieve this aim, the authors of the essays in this book each address a different aspect of the divorce process; the hitherto unacknowledged politics and psychology of divorce emerge as the ‘undercurrents’ of the process, and as crucial at a number of levels, from policy-making, through day-to-day professional practices, to the everyday experiences of those involved. Together, the essays explain how and why these undercurrents have been marginalised in professional and political discourse, and seek to make visible the effects (practical, legal and emotional) of their exclusion from the public arena.

There are good policy reasons for exploring these undercurrents. Policy that is based on an incomplete understanding of how family law is implemented by professionals ‘on the ground’, or of how individual adults and children experience divorce runs the risk, at best, of failing to alleviate people’s problems or, at worst, of compounding them. If divorce policy is confined to the issues currently raised in public debate (a debate which has been constrained by financial and ideological imperatives), such that the undercurrents are neither known nor heeded, there is a real possibility that the reforms will be swept away by the undercurrents for which no provision has been made. This book attempts to broaden the sweep of the divorce debate; it is about divorce as a political and a personal as well as a legal issue. The contributors to this volume all work within an interdisciplinary framework, drawing on recent research and insights from law, sociology and psychology to address a range of crucial, though neglected, issues.

The contributors to this book, each in their own way, address four themes which characterise the dominant discourses with which we are concerned. First, there is a rhetoric of ‘harmony’ which provides the raison d’etre of the Family Law Act and which underlies the conceptual shifts and provides the rationale for the new procedures. Here, matrimonial ‘fault’ appears as a damaging and unnecessary fiction; it is seen as creating undesirable ‘conflict’ and our legislators appear to assume that removing ‘fault’ by changing the divorce process will eliminate acrimony and blame.

Secondly, our legislators have declared explicitly that marriage is to be supported, and this is embodied in the ‘principles’ in section 1 of the Family Law Act. The underlying assumption is that marriage remains the preferred forum for the raising of children and the basis for family life. Divorce, on this view, is undesirable and potentially damaging; the Act provides for a damage-limitation exercise in cases where divorce is, unfortunately, inevitable. In so doing, however, the Act facilitates the continuance of ‘the family’, albeit in a different form.

Thirdly, particular interpretations of children’s welfare, which have been invoked to justify the removal of fault, participate in the construction of the child as the vulnerable victim of divorce. The new law has been carried along on a tide of concern about the welfare of children, but there are very particular interpretations of ‘risk’ and ‘harm’ being made. Children’s welfare has become synonymous with freedom from exposure to parental conflict, and their interests are seen as best served by continuing contact with both parents, regardless of circumstances.

Finally, there is a fourth theme implicit in the Act and in the discourses that inform it: that of gender. The provisions of family law are explicitly gender-neutral, a development which has been regarded by many as a wholly positive one. But, as the contributors to this volume show, the realities of gender differences which are manifested structurally, materially and psychologically, continue to provide powerful undercurrents in the divorce process. Importantly, the gender-neutrality of the formal law renders the complex issue of gender marginal in the public debate. In what follows, we discuss these strands of the dominant discourses in more detail.

‘Harmony’ in Divorce and the Emergence of the New Post-divorce Family

The Family Law Act received the Royal Assent in July 1996 after a turbulent passage through Parliament. At the time of writing a number of pilot studies are underway; the divorce related parts of the Act are due to be implemented in 1999 at the earliest, when the results from the pilot studies are available and their implications have been discussed. The Act provides for two fundamental changes to the old scheme; first, the removal of fault from divorce and, secondly, the introduction of state-funded mediation (through the Legal Aid scheme) as the preferred dispute resolution procedure. Both of these provisions are part of a wider, and longer standing, dissatisfaction with adversarial premises and processes in family proceedings, as well as a move from formal to more informal and administrative modes of justice in divorce. At an ideological level, the Act is testimony to the dominance of the welfare discourse; it makes its ultimate appeal to ‘the best interests of the child’ (Lord Chancellor’s Department, 1993, 1995), but its provisions apply to all divorcing people, regardless of whether they have children or not.

The removal of fault from divorce has not been and will not be, we suspect, easy to achieve. One of the central aims of the Divorce Reform Act of 1969 was the removal of matrimonial fault. That Act introduced ‘irretrievable breakdown’ as the sole ground for divorce but, such was the heated and ideological nature of the debates as the Bill passed through Parliament, that fault, in fact, lived on in the guise of the ‘facts’ required to prove the irretrievable breakdown. Similarly, the passage of the 1996 Act was troubled by a vocal lobby who argued that removal of fault represented an undermining of marriage and ‘the family’. This lobby was undoubtedly placated by the introduction of the ‘principles’ at the Report stage, which include a provision that ‘the institution of marriage is to be supported’ (now in section 1 of the Act), but this principle, coupled with the removal of fault, conveys powerful messages in which many tensions are manifest. The removal of fault from the legal process represents a legislative expression of the primacy of a discourse of harmony and one that prioritises a particular interpretation of children’s interests. The principle that marriage is to be supported connotes a concern that marriage should remain the preferred basis for ‘the family’ and the best forum for raising children. But the passionate nature of the divorce debates, in 1969 and in 1996, indicate that in the popular mind at least, fault remains important and significant in divorce. As in 1969, we may find that we are not able to legislate it away.

At an individual level, studies show that divorcing people are deeply concerned about issues of blame, which colour their perceptions of fairness and their ideas about justice (see, for example, Davis, Cretney and Collins, 1994). For many, the notion of fault, of attributing blame to one party and exonerating the other, is what the legal system should be about, it is what ensures that justice is not only done but also is seen to be done. Brown and Day Sclater, in their chapter on the psychodynamics of divorce, argue that there are good psychological reasons why many divorcing people feel this way; faced with the loss that divorce inevitably entails, as well as the need to build a new life, the imputation of blame can feature prominently on the psychological agendas of divorcing people. These psychological ‘roots’ provide a bedrock for a culture in which divorce is pathologised and where fault goes hand-in-hand with divorce. There is clearly a tension between the kind of harmonious divorce that is envisaged for us, and the needs and expectations of divorcing people.

But it is important to bear in mind that the reform of the divorce law has come at a time of widespread concern about a ‘crisis in the family’; the pro-family agendas of the main political parties, all seeking to claim to be the party of the family, have exerted a powerful influence. There can be no doubt that we, as individuals and as a culture, have a deep investment in ‘family’ as the guarantor of a stable society. Our so-called divorcing society has been held to be responsible for a whole range of social ills, and many feel ‘the family’ to be under threat. Anxieties about a whole range of broader social changes commonly touch base at the level of ‘family’, which provides a convenient ideological location to address those wider concerns. In this context, it is perhaps unsurprising that a reform of the divorce law should seek to provide support for marriage. Arguably, however, the new law goes further than that; there is a sense in which it addresses concerns about the ‘decline of the family’ by providing for the emergence of a new post-divorce family.

Reconstructing ‘the Family’?

Carol Smart (1997) argues that recent changes in family policy, (she is referring to the Children Act 1989, the Child Support Act 1991 and the Family Law Act 1996), have become out of step with current understandings of social and ideological changes such as those discussed by sociologists Giddens (1992) and Beck (1992). She argues that, far from facilitating any adaptation to social change, family law is now taking the lead to promote further change of a particular sort, namely a return to the so-called traditional family of the 1950s. Smart sees family law as ‘engineering policies to change the very nature of post-divorce family life’ and she regards these as ‘harmful tinkerings’ which are likely to result, ironically, not in any return to the golden age of the nuclear family, but rather to preside over its demise.

Fears about the ‘decline of the family’ and its supposed adverse social consequences featured prominently in the Family Law Act debates. The high divorce rate was seen by many as threatening social stability and cohesion through its effects on ‘the family’. For example, during the Bill’s first reading in the House of Lords, the Lord Bishop of Chelmsford said:

For the avoidance of doubt, I must preface what I have to say on the Family Law Bill with a statement that the House of Bishops of the Church of England is second to none in its belief that marriage is part of the order of God’s creation, designed to be a joyful and enriching partnership, bringing comfort and mutual help to those who commit themselves to it. The Bishops also believe that the family is essential to the health and well-being of our society and that no effort should be spared to prepare people for marriage and to assist them in understanding what it takes to maintain faithful marriage relationships and to provide a stable family life (Hansard, HL col 152, 20 November 1995).

This view was closely echoed by the then Lord Chancellor, Lord Mackay of Clashfern, during the Bill’s second reading:

I personally believe that marriage should be for life. This is the ideal I believe most couples who marry strive for. It is this ideal which provides the most stable and secure background for the birth and development of children (Hansard, HL col 704, 30 November 1995).

These contributions to the divorce reform debates evidence a commitment to marriage, and are premised on the idea that ‘the family’ is central to both personal fulfilment and social stability. However, this powerful ideology exists alongside a recognition that our society has undergone a range of profound social and demographic developments which herald fundamental change in the meanings of ‘family’. Coote et al (1994), for example, discuss recent evidence of demographic patterns which show a number of distinct trends: a rising divorce rate, a declining marriage rate, increasing cohabitation, increases in the numbers of children born outside marriage, a separation of sex and marriage, and of marriage and parenthood, and so on. They point out that changes in family patterns are part and parcel of broader social, political and economic trends, as they have been throughout history. Seen in this light, it would appear that a family law which seeks to address, or even reverse, changes in ‘the family’, simply by means of legislation is attempting an impossible task.

But demographic changes are only one part of the story. According to sociologist Anthony Giddens (1992), our culture is currently characterised by changing mentalities, particularly in the sphere of intimacy; people are beginning to think quite differently than they did fifty years ago about the meanings of intimacy and marriage, as the ideology of romantic love is progressively eroded. Giddens sees an increasing tendency towards emotional investments in what he calls ‘confluent love’, a love which is pragmatic and contingent and which lacks the ‘for ever’ quality of romanticism. The search becomes that for the perfect relationship, rather than for Mr or Mrs Right. Giddens sees this ‘transformation of intimacy’ as closely tied to an ascendant individ...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• List of Contributors
• Foreword
• PART I: INTRODUCTION
• 1 The Family Law Act 1996 in Context
• PART II: CHILDREN AND PARENTS
• 2 In Whose Best Interests? Theorising Family Life Following Parental Separation or Divorce
• 3 Children and Divorce: A Private Affair?
• 4 The Wishes and Feelings of the Child
• 5 Contact, Conflict and Risk
• PART III: HUSBANDS AND WIVES
• 6 From Women’s Emancipation to Sex War? Men, Heterosexuality and the Politics of Divorce
• 7 Divorce: A Psychodynamic Perspective
• 8 Experiences of Divorce
• 9 Divorce and Domestic Violence
• 10 Dividing the Family Assets
• PART IV: CONCLUSIONS
• 11 Changing Divorce
• Index