Divorcing Responsibly
| Date | 01 January 2006 |
| Published date | 01 January 2006 |
| Author | Michael Freeman |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00579_3.x |
Helen Reece,Divorcing Responsibly,Oxford: Hart Publishing, 2003,
viii þ264pp, hb d17.95.
This is a fascinating book. It is immensely well-researched, painstakingly argued
and always perceptive. It is a multi-layered work. On one level, it is about post-
liberalism, about liberalism and its critics, feminism, communitarianism, civic
republicanism. On anotherlevel it is about the Family LawAct1996 which Reece
regards as ‘the most perfect example of post-liberal legislation to date’ (p 7). As is
well-known, the part of theAct dealing with divorce, which is Reece’s focus, has
not been and will not be implemented. The explanation for this lies, Reece
believes, in tensions within post-liberalism.
Rather than discussing Reece’s thesis in detail, I shall use this review to ask
some questions which follow a reading of the book. The Act was, of course,
passed bya Conservative government, admittedly one on its last legs and perhaps
‘£ailing around for new ideas’ (p 9). But the progenitor of theAct, Lord Mackay
of Clashfern, was more in£uenced by the NewTestament than by contemporary
critics of liberalism. More seriously, we need to askwhether the idea of divorcing
responsibly is found for the ¢rst time in the 1996 Act. And, of course, it is not.
Ideas about marrying responsibly^there were even proposalsfor classes to prepare
people for marriage^were mooted at the time of the Morton Commission in the
mid-1950s. By the mid 1960s Putting Asunder was proposing forensic social work-
ers to ensure that only those whosemarriages had genuinely irretrievably broken
down were permitted release from marriage.The Law Commission’s response in
1966 was to identify the aims of a good divorce law, to emphasise process and the
valueof reconciliation.The germof the 1966 reformscan thus be traced back30 or
40 years, or even more. It could even be argued that the requirement to divorce
responsibly is as old as civil divorce. The doctrine of collusionmay be interpreted
as a responsibility norm. And why is divorce a two-stage process^a reform intro-
duced in 1861 to counter concern that couples might agree to divorce? And what
aboutthe institution of the Queen’s Proctor? What I think is missing from Reece’s
account is a longer time frame. I am not suggesting thatany reforms or proposals
prior to those surrounding the 1996 Act were in£uenced by post-liberalism. But it
must cast some doubt on the l ink between post-libe ralism and the 1996 concept o f
divorce.
So was the 1996 Act post-liberal? It is worth looking at aspects of it to see
whether they can be so characterised.The 1996 Act would have made divorce a
lengthier process, perhaps taking three times as long as it does now. Post-liberals
may explain this by arguing that ‘divorcing one’s spouse is akin to losing a part of
one’s self’ (p 109). A post-liberaldivorce lawdoes not ‘readily allowdivorce’ (p 118).
Of course, divorce is a process over time rather than a discreteevent, but the e¥ux
of most of that time antedates the commencement of the divorce process. The
1996 Act would have introduced a road block where most couples are looki ng
for a fast motorway. And what of the large percentage of cases where women are
seeking an escape from domestic violence?‘Domestic hooliganism’, as it hasbeen
called (Davis v. Johnson [1978] 1 All ER841,860) hardlyfeatures in Reece’s account:
divorce in this context is rather more like shedding a cancer than losing part of
oneself. Divorce is undoubtedly ‘transformative’, but transformation does not
Reviews
120 rThe Modern Law ReviewLimited 2006
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