Divorce laws now at odds with modern realities

sir – It is simplistic to suppose that making a legal process easier to initiate and conduct necessarily increases the incidence of its use, as Sir Edward Leigh and others suggest (Letters, June 8) in relation to the introduction of “quickie” no-fault divorce by sole application.

Jurists know that there is a complex mix of factors that apply to practically all fields of litigation. Top of the list is risk – how likely you are to win, and what is at stake. In the vast majority of divorces in this country, it is almost certain that the wife will get most of what she wants and the husband will be a major loser, particularly financially. A wife consulting a solicitor regarding a divorce is likely to discover she’s on a one-way bet. Before the withdrawal of legal aid from nearly all divorce proceedings, around 80 per cent of petitioners were wives. The loss of access to legal advice has evened things up, since husbands are less likely to know what will happen to them.

The Government is right to seek to reduce the amount of blame-throwing and conflict in divorce. If MPS wish to make divorce less prevalent, then what is needed is a new Act covering the financial dispositions following divorce (called ancillary relief). This would be a first step towards resetting the judicial culture, since the application of the Act would require a new set of case-law authorities to interpret the law, eliminating the precedents of cases decided years ago, when women had inferior economic opportunities to men and the system was designed to protect their interests.

A number of younger judges, especially female ones, are dragging the law slowly into the 21st century. But the old culture hangs on, partly because of outdated precedents and partly because of an outdated culture, with many male judges anxious to be chivalrous with other men’s money.

Fix the ancillary relief and seeking a divorce, however quick and easy the process, will become riskier and less attractive.

Dr Richard Austen-baker

Senior Lecturer in Law Lancaster University Law School