1. Sclater, S Day and Piper, C The Family Law Act in context’ in Sclater, S Day and Piper, C (eds) Undercurrents of Divorce (Aldershot: Ashgate, 1999) pp 3–29 Google Scholar at p 5.

2. The Family Law Act 1996 provided that the process of divorce was now to be initiated by either or both parties to a marriage, at least 3 months after attending an ‘information meeting’, simply filing a statement to the effect that their marriage had irretrievably broken down. This filing was to be followed by a 9-month period for ‘reflection and consideration’ (increased to 15 months if there were children of the family aged under 16 or the other party applied for an extension), at the end of which either party would then be entitled to apply for a divorce order on the basis that the marriage breakdown was now irretrievable.

3. Eekelaar, J, Maclean, M and Beinart, S Family Lawyers. The Divorce Work of Solicitors (Oxford: Hart Publishing, 2000) p 1 Google Scholar.

4. The Matrimonial Causes Act 1857 effectively heralded the advent of secular divorce; see, for example, Wolfram, S In-Laws and Outlaws. Kinship and Marriage in England (London: Croom Helm, 1987)Google Scholar; . Prior to 1857, divorces were effected by Private Acts of Parliament, principally for the benefit of the wealthy few. In addition, ecclesiastical courts were able to grant separation ‘from bed and board’ (divorce a mensa et thoro) on proof of either adultery or extreme cruelty. This did not, however, constitute an absolute divorce in that, although relieved from the obligation to live together, the marriage tie between spouses remained. The Matrimonial Causes Act 1857 consolidated these matrimonial jurisdictions and transferred them across to a civil court of law. The matrimonial jurisdiction of the ecclesiastical courts was thus abolished and effectively re-created in a new ‘Court for Divorce and Matrimonial Causes’.

5. The Matrimonial Causes Act 1857 provided for divorce by a husband on the grounds of his wife’s adultery. A wife seeking divorce required her husband’s adultery to be aggravated by incest, bigamy, rape, sodomy, bestiality, cruelty or desertion. The Matrimonial Causes Act of 1937 subsequently expanded the grounds for divorce to include desertion and cruelty, and equalised the position of husbands and wives.

6. The Divorce Reform Act 1969 came into force on 1 January 1971. It was subsequently consolidated into the Matrimonial Causes Act 1973, which remains in force to date. Section 1(1) provides that the sole ground for obtaining a divorce is that a marriage has ‘broken down irretrievably’. A court can only hold that such a breakdown has in fact taken place on proof of one of the five facts contained in s 1(2). These facts embrace instances of fault – adultery, that one party has behaved in such a way that the other cannot reasonably be expected to live with him or her, and desertion – and the no-fault situations of 2 years’ separation, where the parties agree on divorce, and 5 years’ simple separation.

7. See, for example, the government’s 1995 White Paper, in which it was noted that ‘about 75%’ of divorce petitions were based on either adultery or intolerable behaviour: Lord Chancellor’s Department Looking to the Future. Mediation and the Ground for Divorce Cm 2799, 1995, para 2.4.

8. Hasson, E Setting a standard or reflecting reality? the “role” of divorce law, and the case of the Family Law Act 1996’ (2003) 17(3) International Journal of Law, Policy and the Family 338 CrossRefGoogle Scholar at 340.

9. Family Law Act 1996, s 1(a) and (b).

10. Such steps included the requirement to attend an information meeting at which individuals would be encouraged to meet with a marriage counsellor; a waiting period of ‘reflection and consideration’, which, it was hoped, would enable couples to both address what might have gone wrong in their marriage and explore the possibilities of reconciliation; and the encouragement of mediation, which was felt to have the potential to assist positively in saving marriages.

11. Lord Irvine of Lairg, The Lord Chancellor, Speech for the closing session of the Fourth European Conference on Family Law (Strasbourg, 2 October 1998).

12. Roger, J Family policy or moral regulation?’ (1995) 15(1) Critical Social Policy 5 CrossRefGoogle Scholar at 7.

13. The Law Commission Reform of the Grounds for Divorce. The Field of Choice Cmnd 3123, 1966, para 120(1).

14. The Law Commission Family Law. The Ground for Divorce Law Com No 192 (HMSO, 1990) paras 3.1–3.2.

15. Ibid, at para 3.35.

16. Ibid, at para 3.28. In 1988, the Law Commission had produced a discussion paper: Facing the Future. A Discussion Paper on the Ground for Divorce Law Com No 170, HC 479 (HMSO, 1988). This outlined a number of ‘problems’ with regards to existing law, including that the retention of fault within the divorce process generated hostility and made the process more painful for all of those involved. Current law was also criticised for its failure to recognise that divorce was not ‘a final product but part of a massive transition for the parties and their children’ (para 3.50). It was the Commission’s view that this transition should be as smooth as possible, and with this in mind a number of possible options for reform were reviewed. Two proposals ultimately emerged as the ‘most realistic’: namely divorce following a period of separation, and divorce after a period of transition in which parties would be given time and encouragement to reflect and to make arrangements for the future (para 6.3). Having considered these two options, the discussion paper put forward a scheme that was based upon the latter. Comments on and responses to the scheme were then invited. Appendix B of the Commission’s 1990 paper (see n 14 above) contains full details of all those organisations and individuals who responded to the discussion paper.

17. Lord Chancellor’s Department Looking to the Future. Mediation and the Ground for Divorce Cm 2424, 1993.

18. Lord Chancellor’s Department, above n 7.

19. Cretney, S Family Law in the Twentieth Century: A History (Oxford: Oxford University Press, 2003) p 388 Google Scholar.

20. Lord Chancellor’s Department, above n 7, p iv.

21. J Lewis ‘Marriage saving revisited’ [1996] Fam Law 423 at 423.

22. Hansard HL Deb, vol 567, col 700, 30 November 1995.

23. Lewis, above n 21.

24. Lewis, J The End of Marriage? Individualism and Intimate Relationships (Cheltenham: Edward Elgar, 2001) p 117 Google Scholar.

25. Burgess, Rg In the Field: An Introduction to Field Research (London: Allen and Unwin, 1984) p 57 CrossRefGoogle Scholar.

26. Matrimonial Causes Act 1973, s 11(c) provides that a marriage is void if the parties are not respectively male and female. The Gender Recognition Act 2004 now allows adults (so long as certain requirements are met) to be legally recognised, and thus to marry in an acquired gender. English law does not, however, accept that same-sex relationships can constitute a legal marriage.

27. L Glennon ‘Displacing the “conjugal family” in legal policy – a progressive move?’ [2005] CFLQ 141 at 142. Glennon notes that, upon registration, the 2004 Act includes a duty to provide reasonable maintenance for civil partners and any children of the family; assessment for child support in the same way as parents; joint treatment for income-related benefits and state pensions; recognition for immigration purposes; arrangements for the division of property on the dissolution of the partnership; the right to register the death of one’s partner; treatment in the same way as spouses for tax purposes, and for inheritance, intestacy and compensation rights (at 142, n 6).

28. Representative of solicitors’ organisation.

29. This perception reflects the findings of Davis and Murch, who conducted interviews with over 600 divorced people during the early 1980s. Their findings revealed that the use of fault (particularly adultery) frequently involved contrivance between the parties: Davis, G and Murch, M Grounds for Divorce (Oxford: Clarendon Press, 1988) p 83 Google Scholar.

30. See, for example, Davis and Murch, ibid, who found that many divorced individuals felt considerable resentment over the allegations made about them in behaviour petitions. Similarly, in a study of custody cases in 1977, Eekelaar found that the use of behaviour petitions often had the effect of aggravating hostility between the parties: Eekelaar, J Family Law and Social Policy (London: Weidenfeld and Nicolson, 2nd edn, 1984) pp 42–48 Google Scholar.

31. Representative of government department charged with reforming divorce law.

32. For a useful summary see, for example, Parkinson, L Separation, Divorce and Families (London: Macmillan, 1987) pp 1–7 CrossRefGoogle Scholar.

33. This stance reflects the view of the Law Commission as articulated in its 1988 discussion paper (above n 16, at para 3.50), as well as that of commentators such as Gwynn Davis; see, for example, ‘Divorce reform – peering anxiously into the future’ [1995] Fam Law 564 at 564.

34. Maclean, M and Richards, M Parents and divorce: changing patterns of public intervention’ in Bainham, A, Sclater, S Day and Richards, M (eds) What is a Parent? A Socio-Legal Analysis (Oxford: Hart Publishing, 1999) pp 259–270 Google Scholar. See also Lewis, above n 24, p 94, who argues that the effect of the process of law reform since 1969 has been to assume a degree of individualisation with regards to the parties in their capacity as husbands and wives, while, at the same time, increasingly putting in place measures that seek to regulate them in their capacity as parents: ‘the focus [of regulation] switched from the relationship between adults as husband and wife, which had become more fluid, to their roles as fathers and mothers’.

35. Above n 28.

36. Mediation advisor, national children’s organisation.

37. Government minister.

38. The Law Commission had originally envisaged the provision of an information ‘pack’ (above n 14, para 5.19). The concept of an information meeting was introduced in the government’s 1993 Green Paper (Lord Chancellor’s Department, above n 17). A single ‘first port of call’ was envisaged for all those wishing to initiate divorce proceedings (para 8.1). This would involve a personal interview, during which information about the divorce process, together with ‘legal information’, would be provided (para 8.2). By the time that the White Paper was published in 1995 (Lord Chancellor’s Department, above n 7), this personal interview had been replaced by a ‘group session’ (see paras 7.13–7.16).

39. Representative of family solicitors’ organisation.

40. Director, marriage support organisation.

41. In its 1995 White Paper (Lord Chancellor’s Department, above n 7), the government expressed the view that there should be a ‘definite encouragement’ to use mediation rather than lawyers as the method of resolving disputes (see, for example, para 5.21).

42. An example is provided by Dingwall and Eekelaar, who emphasise the importance of individuals retaining a degree of choice that recognises the variations in their needs and circumstances: Dingwall, R and Eekelaar, J A wider vision’ in Dingwall, R and Eekelaar, J (eds) Divorce Mediation and the Legal Process (Oxford: Clarendon Press, 1988) pp 168–182 Google Scholar at p 180.

43. See, for example, Walsh, E, Hodson, D and Fisher, T Family mediation – the new profession’ in The Rt Hon Lord Justice Thorpe and E Clarke (eds) No Fault or Flaw. The Future of the Family Law Act 1996 (Bristol: Family Law, 2000) pp 35–43 Google ScholarPubMed at p 42.

44. Above n 39. Again such a view is reflective of the position adopted by researchers who have studied mediation within the divorce context. Indeed Dingwall and Eekelaar, above n 42, p 180, advocate a ‘mixed economy’ of dispute resolution involving both mediation and lawyers.

45. Above n 37. This echoes the Law Commission’s view that divorce law is not well suited to ‘engaging in the complex and sensitive factual and moral judgements’ that would be necessary in order accurately to reflect the relative blameworthiness of the parties to a marriage; see the Law Commission, above n 14, at para 3.6.

46. Above n 40.

47. Perhaps unsurprisingly, these more ‘pragmatic’ individuals comprised those participants with ‘legal backgrounds’.

48. Member law reform and review body.

49. MDA Freeman ‘Divorce gospel style’ [1997] Fam Law 413 at 416. While agreeing with Freeman, Andrew Bainham raises a slightly different concern: namely that a more restrictive divorce process also has the potential to ‘put off’ significant numbers of individuals who might otherwise be inclined to marry; see A Bainham ‘Changing families and changing concepts – reforming the language of law’ [1998] CFLQ 1 at 14.

50. Above n 28.

51. Director, marriage support and research organisation.

52. Director, national mediation organisation.

53. Ibid.

54. Above n 40.

55. Above n 48.

56. It is acknowledged that the size of this constituency is small. However, there are numerous examples of similar views being articulated, particularly during the parliamentary stages of the reform process. See, for example, Hansard HL Deb, vol 567, col 700, 30 November 1995; Hansard HC Deb, vol 274, col 738, 25 March 1996.

57. Matrimonial Causes Act 1973, s 1(3) places a duty on courts to inquire ‘so far as [they] reasonably can’ into allegations contained in the petition.

58. Probert, R Cretney’s Family Law (London: Sweet and Maxwell, 5th edn, 2003) p 53 Google Scholar. Under this ‘special procedure’, instead of orally presenting petitions to a judge in the petitioner’s presence, the various forms are scrutinised by a judge sitting in private. Provided the judge is satisfied that the conditions for a divorce are met, a certificate is then issued on the basis of which a divorce will subsequently be granted. The parties are no longer required to attend court, with the result that divorce has been transformed into an essentially administrative process. See, for example, .

59. MDA Freeman ‘Divorce without legal aid’ [1976] Fam Law 255.

60. Van Houtte, J Family law and family reality. a sociolegal and paradigmatic approach’ (1998) 3 Sociologia del diritto 61 Google Scholar.

61. Above n 36.

62. Deech, R Divorce law and empirical studies’ (1990) 106 Law Quarterly Review 229 Google Scholar at 233.

63. Member of House of Lords: Conservative.

64. Eekelaar, J Family law and social control’ in Eekelaar, J and Bell, J (eds) Oxford Essays in Jurisprudence (Third Series) (Oxford: Clarendon Press, 1987) pp 125–144 Google Scholar at p 133.

65. S Day Sclater and C Piper (2000) ‘Re-moralising the family? – family policy, family law and youth justice’ [2000] CFLQ 135 at 144.

66. Ribbens, J Mothers and their Children: A Feminist Sociology of Childrearing (London: Sage, 1994) p 57 Google Scholar.

67. Silva, Eb and Smart, C The “new” practices and politics of family life’ in Silva, Eb and Smart, C (eds) The New Family? (London: Sage, 1999) pp1–12 Google Scholar at pp 2–3.

68. Sclater, S Day Divorce: A Psychosocial Study (Aldershot: Ashgate, 1999) p 14 Google Scholar.

69. Above n 63.

70. Member of House of Commons: Conservative.

71. Ahdar, R Law and Religion (Aldershot: Ashgate, 2000) p 2 Google Scholar.

72. Regarding the negotiation of individual ‘moral terrains’, see Smart, C and Neale, B Family Fragments? (Cambridge: Polity Press, 1999)Google Scholar; .

73. Sevenhuijsen, S Citizenship and the Ethics of Care: Feminist Considerations about Justice, Morality and Politics (London: Routledge, 1998) p 25 Google Scholar.

74. Ribbens-McCarthy, J, Edwards, R and Gillies, V Parenting and Step-Parenting Contemporary Moral Tales, Occasional Paper 4, Centre for Family and Household Research (Oxford: Oxford Brooks University, 2000) p 36 Google Scholar.

75. For example, the removal of adultery might be thought to undermine the marital obligation of fidelity: Bainham, A Men and women behaving badly: is fault dead in English family law?’ (2001) 21(2) Oxford Journal of Legal Studies 219 CrossRefGoogle Scholar at 222.

76. Above n 63.

77. Rodger, above n 12, at 14.

78. Morgan, Dhj Ideologies of marriage and family life’ in Clarke, D (ed) Marriage, Domestic Life and Social Change. Writings for Jacqueline Burgoyne (1944–88) (London: Routledge, 1991) pp 114–138 Google Scholar at p 115.

79. Devlin, P The Enforcement of Morals (Oxford: Oxford University Press, 1965)Google Scholar.

80. Hasson, E The street-level response to relationship breakdown: a lesson for national policy?’ (2004) 26(1) Journal of Social Welfare and Family Law 35 CrossRefGoogle Scholar at 44.

81. Above n 40.

82. Day Sclater and Piper, above n 65.

83. See Cretney, above n 58, p 5.

84. Dewar, J The normal chaos of family law’ (1998) 61(4) The Modern Law Review 467 CrossRefGoogle Scholar at 477.

85. Ibid, at 483.

86. J Eekelaar ‘Family law: keeping us “on message” ’ [1999] CFLQ 387 at 389.

87. Ibid.

88. R Collier ‘The dashing of a “liberal dream”? – the information meeting, the “new family” and the limits of law’ [1999] CFLQ 257 at 261.

89. Ibid.

90. Dewar, above n 84, at 476.

91. Above n 51.

92. Above n 37.

93. Above n 28.

94. Above n 48.

95. Above n 28.

96. Above n 39.

97. Above n 51.

98. See Lord Chancellor’s Department Divorce Law Reform – The Government Proposes to Repeal Part II of the Family Law Act 1996 Press Notice 20/01, 16 January 2001. Emphasising the centrality of compulsory information meetings to the new divorce process, the press notice stated that none of the six information models tested in the pilot schemes had proved ‘good enough’ to justify implementing the new process on a national scale. It further stated that evaluation of the pilot schemes showed that although those attending did find the provision of information to be valuable, the meetings were generally failing to save marriages.

99. For a summary, see, for example, Lewis, J Marriage, Cohabitation and the Law: Individualism and Obligation (London: Lord Chancellor’s Department, 1999)Google Scholar.

100. R Dingwall, J Eekelaar and T Murray ‘Childhood as a social problem: a survey of the history of legal regulation’ (1984) 11(2) Journal of Law and Society 207 at 212–213.

101. Johnson, Mp Commitment to personal relationships’ in WH Jones and D Perlman Advances in Personal Relationships: A Research Manual vol 3 (London: Jessica Kingsley, 1991) pp 117–143 Google Scholar.

102. Pound, R The limits of effective legal action’ (1917) 27(2) International Journal of Ethics 150 CrossRefGoogle Scholar.

103. S Cretney ‘The Divorce White Paper – some reflections’ [1995] Fam Law 302 at 303.

104. Above n 31.

105. See, for example, Lewis’ research on marriage, cohabitation and commitment: J Lewis ‘Marriage and cohabitation and the nature of commitment’[1999] CFLQ 355; Lewis, J, Datta, J and Sarre, S Individualism and Commitment in Marriage and Cohabitation (London: Lord Chancellor’s Department, 1999)Google Scholar.

106. Dewar, above n 84, at 484.

107. Lord Chancellor’s Department, above n 98.

108. Civil Partnership Act 2004, s 44(1).

109. Ibid, s 44(2).

110. The initial dissolution order is ‘conditional’. An application to make the order final can then be submitted after a period of 6 weeks has elapsed from the date of the conditional order: ibid, s 38.

111. Matrimonial Causes Act 1973, s 1(2)(a) provides that the irretrievable breakdown of marriage may be established by the petitioner satisfying the court ‘that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent’.

112. Responses to Civil Partnership. A Framework for the Legal Recognition of Same-Sex Couples (London: Women and Equality Unit, Department of Trade and Industry, November 2003) p 35.

113. House of Lords Grand Committee, col GC19, 10 May 2004, Minister of State, Home Office.

114. Civil Partnership. A Framework for the Legal Recognition of Same-Sex Couples Consultation Paper (London: Women and Equality Unit, Department of Trade and Industry, 30 June 2003) para 2.1.

115. Ibid, para 5.1.

116. Baroness Scotland, Minister of State at the Home Office, speaking during the Second Reading of the Civil Partnerships Bill in the House of Lords: Hansard HL Deb, vol 660, col 390, 22 April 2004.

117. Lord Chancellor’s Department Information Meetings and Associated Provisions within the Family Law Act 1996. Final Evaluation Report Vols 1–3 (London: Lord Chancellor’s Department, 2001) vol 2, pp 285–286 Google Scholar.

118. Ibid, at pp 447–451.

119. See, for example, Davis, G, Cretney, S and Collins, J Simple Quarrels (Oxford: Clarendon Press, 1994)Google Scholar.

120. See, for example, above n 114, para 1.3.

121. B Hale ‘Homosexual rights’ [2004] CFLQ 125 at 132.

122. See, for example, Lind, C Sexuality and same-sex relationships in law’ in Brooks-Gordon, B et al (eds) Sexuality Repositioned. Diversity and the Law (Oxford: Hart, 2004) pp 109–130 Google Scholar; .

123. J Murphy ‘Same-sex marriage in England: a role for human rights?’ [2004] CFLQ 245 at 245.

124. For example, Kitzinger and Wilkinson argue that anything less than marriage effectively renders same-sex couples second class citizens: above n 122, at 144. In a similar vein, Waaldikj suggests that the closer any civil partnership regime is to the marriage model, then the better the principle of equality is served: K Waaldikj ‘Taking same-sex partnerships seriously – European experiences as British perspectives?’ [2003] IFL 84.

125. Norrie argues that to the extent that marriage retains relevance today, it does so only in the context of opposite-sex relationships. The marriage model denies the very real differences that exist between same- and opposite-sex couples, and same-sex relationships do not comfortably ‘fit’ the heterosexual model. Adopting the marriage model is also charged with denying equal respect to those who cannot or will not model their relationships on the heterosexual norm. Real equality can thus only be achieved though the legal recognition of a variety of forms of domestic relationship: K McK Norrie ‘Marriage is for heterosexuals – may the rest of us be saved from it’ [2000] CFLQ 363.

126. Kitzinger and Wilkinson, above n 122, at 136.

127. Deech, above n 62, at 244.

128. Baroness Young Hansard HL Deb, vol 567, col 733, 30 November 1995.

129. R Schuz ‘Divorce reform’ [1993] Fam Law 630 at 631.

130. Davis and Murch, above n 29, p 148.

131. Above n 58.

132. Davis and Murch, above n 29, p 13.

133. This review, conducted by the Women and Equality Unit at the Department of Trade and Industry, resulted in the publication of a consultation paper in June of 2003, in which the government sought comments on its proposals for a civil partnership registration scheme; see above n 114. A period of consultation then followed, with the government’s Civil Partnership Bill subsequently being introduced into Parliament on 30 March 2004.

134. Civil Partnerships Bill, cl 31.

135. Ibid, cl 32.

136. Glennon, above n 27, at 143, n 8.

137. Lady Justice Hale, DBE ‘The way forward’ in Thorpe and Clarke, above n 43, pp 143–147 at p 146.

138. Mansfield, P, Reynolds, J and Arai, L What policy developments would be most likely to secure an improvement in marital stability’ in High Divorce Rates: The State of Evidence on Reasons and Remedies Lord Chancellor’s Department Research Series, no 2/99, vol 2 (London: Lord Chancellor’s Department, 1999) pp 1–46 Google Scholar at p 33.

139. See, for example, Thorpe and Clarke, above n 43.

140. See Cretney, above n 19, p 391.