Divorcing ‘responsibly’?

Divorcing Responsibly, Helen Reece, Hart Publishing 2003

The UK rules on divorce were reformed in 1996, when parliament passed the Family Law Act. Part II of this Act generated a great deal of debate at the time, for its suggestion that divorce should be made ‘no fault’, but that those wanting to divorce should go through a compulsory period of reflection following filing divorce proceedings.

The reflection period was to be a minimum of nine-and-half months, with an additional six months if there were children involved; and once they had started the proceedings, the couple would have to attend an information session explaining the benefits of counselling and marriage guidance.

Following the passage of the Family Law Act, pilot schemes were set up to measure the effects of these information sessions. But in 2001, the Lord Chancellor announced that the government would be asked to repeal the new law. In the meantime, the information sessions would be halted and implementation of Part II of the Act thus abandoned.

Helen Reece’s Divorcing Responsibly is a thorough and revealing account of reasons why this law was proposed, and why it was then withdrawn. Through her case study of this particular legal debate, the author also points to a far wider process – the development of what has been termed the ‘therapeutic state’.

Taking the idea of ‘no fault’ divorce first, Reece explains how this constitutes a fundamental break with previous legal arrangements. Until well into the twentieth century, divorce was tightly regulated, very hard to obtain, and ‘a prerogative of the rich and almost exclusively a male prerogative’ (p2). Gender imbalance was reduced with the Matrimonial Causes Act of 1923, allowing women to petition for divorce, but it was only in 1969 with the Divorce Reform Act that liberalisation occurred.

The Divorce Reform Act widened the basis on which a petition for divorce could be made. But still, those wanting to divorce could only do so if they could show, to the court’s satisfaction, that the marriage had broken down through adultery, unreasonable behaviour or desertion for at least two years – one party had thus been ‘at fault’. Alternatively, living apart for two years if both parties consented to divorce, and for five years where one did not, were also grounds.

‘Liberal’, therefore, might seem to be a peculiar way to describe this law, given the need to go to court and discuss the most intimate aspects of one’s life with a bunch of lawyers and a judge (and often have to lie by admitting to adultery or unreasonable behaviour, in order to get out of a marriage that was just plain unhappy).

Having to prove to nobody other that yourself and your soon-to-be-ex partner that enough is enough seems more like an arrangement worthy of the term. This approach makes sense if it is considered that it is not the state’s job to decide why a marriage should end. It makes sense if marriage is viewed as a kind of relationship that people enter into leave as they see fit, and that those individuals involved are best placed to decide if they want to stay married or not, for whatever reason. They can blame the other party for the end of the marriage if they want to, and if things end up really messy they can even employ a solicitor to go to battle over who gets what. But whether or not the marriage should end is not a matter for the law.

Yet as Reece explains, this way of viewing people, and their relationships with each other, is very much at odds with the kind of thinking that was behind Part II of the Family Law Act: thinking that she terms ‘post-liberal’.

Reece’s discussion of ‘post-liberalism’ is focused on an interrogation of contemporary social theory, taking in feminist, communitarian, and civic republican schools of thought, and covering writers including Amitai Etzioni, Michael Sandel, Charles Taylor, Catherine McKinnon, Ulrich Beck and Elizabeth Beck-Gernsheim, and Antony Giddens. She shows how this social theory expresses the particular view of human beings and their relationships with other that underpins approach to divorce law adopted in 1996.

The social theory discussed by Reece is essentially a critique of liberalism. Different theorists have their own take on how they explain their disagreements with liberalism, but a common theme is that the idea of autonomy, which arises from the liberal view of the individual, no longer makes sense. In her critique of these theories, Reece shows how divorce law that was based on the notion that it is the right – and responsibility – of the married couple to decide for themselves whether they want to stay together eventually came to make no sense at all.

Points emphasised by Reece about the post-liberal conception of autonomy are, very briefly, as follows. Theorists argue that there is no such thing as the individual with free will, who can act in an autonomous fashion and make decisions. Thus the liberal view is a fallacy. Rather, subjectivity is constructed socially. According to some, this does not mean simply that human beings are social, interacting with others. It means that to their very core and essence – in their identity and sense of self – they are the product of external forces. This means that one cannot simply ‘know oneself’, and act in an autonomous fashion.

However, as Reece explains, this critique of autonomy presents a problem for those who argue for it. If the self is fundamentally a ‘social construct’ then it is like a straw in the wind, endlessly adapting to new situations. If this were true, ‘Identity would blur indistinguishably into situation’ (p31). The problem with this, of course, would be its consequences. No possibility of meaningful action is left in this view of what it means to be a human being. So the concept of autonomy cannot be abandoned altogether – there is a need for a ‘post-liberal’ version of it.

In this post-liberal version, explains Reece, autonomy is developed, not given. Autonomy is gained as one is involved in a process that takes places through interaction and reflection; autonomy becomes ‘cognitive’. And the primary location for this process to take place, according to post-liberals, is in the inter-personal realm. It is through interactions and relations with other individuals that we can ‘become’.

From this critical examination of the post-liberal version of autonomy, Reece discusses how this concept is applied to marriage and divorce. The point of marriage is reformulated: it no longer requires the abnegation of the self to an external morality (the conservative view), but rather it is as a means through which the self can be developed (but only insofar as self has to be denied).

Divorce, in this approach, may be a bad thing, in so far as it constitutes an abnegation of self-development. If a marriage is not ‘really’ over, then to get divorced fails to assist in the development of autonomy. On the other hand, however, if it is the case that a marriage becomes no longer a relationship through which self-realisation can take place, it can be viewed positively: it is possible to ‘divorce well’.

In the terms of this kind of thinking, Part II of the Family Law Act makes sense. On one hand, it is not tenable for post-liberal theory to see divorce as moral failing – therefore there must be ‘no fault’. But it cannot simply allow divorce on demand, since this would require people to be able to act autonomously. So ‘no fault’ must be combined with measures that allow us to develop as people – hence the need for reflection, delay, information and counselling. In a state policy informed by post-liberal theory, then, divorce comes to constitute a kind of state-sponsored process through which we can learn how to become more autonomous people.

So why did it fail? Why was Part II of the Family Law Act eventually withdrawn? Reece refutes the notion that this was because there was a backlash against the coercive and authoritarian nature of what had been proposed. While there was some reaction in parliament and more widely to the new law, and some criticism of it after it was passed, this cannot explain what took place between 1996 and 2001, when it was announced that the implementation of the Act would be suspended.

In one of the most fascinating chapters of her book, Reece explains that the conclusion that the Act had failed was drawn on the basis of an assessment of the results of research about the information sessions. They were deemed to have failed in their objectives.

As Reece notes, this perception of failure is an intriguing one. It was not the case that the information sessions were poorly attended, or indeed viewed particularly negatively by participants. To the contrary, people did go, and said they found them useful. However, the outcome was, in the view of the Lord Chancellor, that they still failed to generate an outcome where people ‘divorce well’.

This conclusion was drawn because, following the information session, most people then still went to a solicitor to get their marriage ended in the ‘traditional way’. They did not live out cognitive autonomy to its full. People, it seems, viewed the receipt of information in what was considered an ‘inappropriate’ way. They saw it imparting of insights that they could then act on, as they saw fit. The felt it helpful to know more, but then made decisions about what was the best course of action to take on the basis of this knowledge. And crucially, only the minority thought it best that they should then go for further counselling. Most still just wanted to end their marriage.

For The Lord Chancellor, this was the not the outcome needed. The information session could only be successful, in his view, if it had one overriding outcome – spending more time in counselling, becoming more ‘fully informed’. Thus the programme was abandoned.

It would be a real mistake, however, to imagine that this has led to the end of attempts to enact post-liberalism. Rather, the abandonment of Part II of the Family Law Act should be viewed as a blip rather than halt in trajectory. The obligation to be informed and counselled in an ongoing way has diffused throughout thinking in social policy in regard to all areas of family life, and beyond. ‘Information and support’ are the buzz-words of social policy today.

As Reece points out, this is sometimes ‘made available’ in an overtly coercive way – for example in the obligation to attend parenting classes in some circumstances – but what matters more is the general way that the ethos of social policy has developed with these twin imperatives at its heart.

In regard to issues that might arise in any kind of personal relationship, it is now always viewed as better to ‘seek information and support’ rather than imagine we can ‘cope alone’. Thus the 1998 document, Supporting Families, which outlined New Labour’s approach to family life, explains: ‘We want to change the culture so that seeking advice and help when it is needed is seen not as a failure but the action of concerned and responsible parents.’ In the foreword to this document, former home secretary Jack Straw explains such support is, in fact, an aspect of our democracy. Families have nothing less than a ‘right’ to expect information and support (and thus a duty to be informed and supported).

When it comes to marriage and divorce, what has happened is that the imperative to be informed and supported has been re-enforced, and also extended. As the Lord Chancellor puts it in Moving Forward Together, a document published last year that outlines the government’s approach to marriage and relationships, ‘help, advice or information’ should be provided to all; ‘such support can benefit couples at all stages of relationships’. Whether we marry or not, it seems, we are all to become engaged in the process of developing our autonomy.

While it requires concentration and application, those who want to understand better the thinking behind the ‘therapy culture’ – namely the rise of a thoroughly degraded view of subjectivity – will gain a great deal from reading this book.

Buy Divorcing Responsibly by Helen Reece from Amazon UK.

Ellie Lee is coordinator of the Pro-Choice Forum, and a research fellow in the Department of Sociology and Social Policy at the University of Southampton. She is the author of Abortion, Motherhood, and Mental Health: Medicalising Reproduction in the United States and Great Britain, Walter de Gruyter, 2004 (buy this book from Amazon (UK) or Amazon (USA)). She is also the editor of Abortion: Whose Right?, Hodder Murray, 2002 (buy this book from Amazon (UK) or Amazon (USA)); Designer Babies: Where Should We Draw the Line?, Hodder Murray, 2002 (buy this book from Amazon (UK) or Amazon (USA)); and Abortion Law and Politics Today, Palgrave Macmillan, 1998 (buy this book from Amazon (UK) or Amazon (USA)).