Till desperation do us part

JACQUELINE DEAN is "absolutely disgusted" about her divorce. Not because of her husband Christopher's behaviour, or because she has found herself deserted and her divorce pushed through. Quite the reverse.

Last week Judge Gabriel Hutton ruled that Mrs Dean should not be granted a divorce because he was not satisfied that her marriage had broken down irretrievably, Mrs Dean having moved back into the marital home after separating from her husband. When her marriage broke down she had moved in with her sister, but when her sister married, Mrs Dean found herself homeless and her husband allowed her to return.

"We have not been man and wife since 1994 when I left home with the kids," Jacqueline says. "We lived totally separate lives. There was no question of us being back together as husband and wife. In fact I've had another boyfriend for the past year." Judge Hutton was not convinced, and while his decision was an unusual one in the circumstances, it chimed with a changing era in the history of divorce. Breaking up is about to get harder, in spite of the fact that more couples than ever seek divorce (one in three marriages now ends that way), and the fact that once couples have made their decision they want to get the matter settled quickly.

WHEN the new Family Law Act comes into operation - at present the timetable has not been set - the chances of a decree nisi within two months will become a thing of the past. The Solicitors' Family Law Association says it fears a rush for "fault" divorce as the law changes and the time it takes to secure a divorce gets longer. Under the new law couples will have to attend an information meeting," says Rosemary Carter of the SFLA. "If they decide to go ahead with a divorce they will have to wait three months before they can begin proceedings. Then there has to be another nine months of reflection before the divorce can go through. And if a couple have children under 16 then the period of reflection can extend to 15 months."

The Family Law Act was originally meant to be in force by the end of 1998. Now 1999, or even 2000, seem more likely. This has not stopped some couples rushing into divorce - citing adultery or unreasonable behaviour - to avoid the deadline. "It's the uncertainty," says Ms Carter. "Last week I saw one wife who wanted an amicable divorce from her husband. Basically they'd both grown up during their marriage and both had different interests, and both had new partners. Both were professionals, working people, and decided they wanted a divorce based on a two-year separation.

"Under the existing law that's fine. But it soon might not be. Both want to get on with their lives, so they were very happy to go with a fault- based divorce, of him committing adultery. In the end they constructed an unreasonable behaviour."

This was not the idea when reform of the divorce laws took place. The 1969 Divorce Reform Act - which subsequently became the Matrimonial Causes Act of 1973 - attempted to remove the concepts of "guilty party" and "matrimonial offence" by introducing a solitary ground for divorce which was the irretrievable breakdown of marriage. Apart from causes such as adultery, unreasonable behaviour or desertion, it also said that couples could divorce by mutual consent after two years' separation or by the sole wish of the petitioner after five years.

IT WAS meant to make divorce less painful, but it hasn't worked. Of the 154,300 divorces made absolute in 1996 (the latest available figures), 80 per cent were granted because of a "fault" divorce - mainly adultery or unreasonable behaviour - the reason being that people do not want to wait the set number of years, when concocting a reason such as unreasonable behaviour will free them much quicker. "People are not going to realise what has hit them," says the divorce lawyer Margaret Bennett of the change in the law.

But for associations like the marriage guidance organisation Relate, the change in the law is to be welcomed. Julia Cole says her organisation whole-heartedly supports the new act. "At the moment, in theory, you can get divorced quite quickly.

"But the problem is when your divorce goes through quickly and the wrangling follows. Children get caught in the crossfire when couples start to argue over financial matters." The new act, she says, will be better. "Couples can then decide to go along to see a counsellor, to have mediation, and that often leads to less bitterness. They will see if their marriage can be saved. Studies suggest that 25 per cent of those who come to us who are already separated are back together again six months after counselling."

"Quickie" divorces take their toll on people, too, according to Ms Cole. "People have compared divorce to bereavement. But sometimes it can seem more difficult than losing a partner through death because then they don't have to see the partner every week when they come to pick up the children."

ANOTHER person who feels divorce should be made more difficult is Professor Stein Ringen, of Green College, Oxford. In his book The Family In Question, published last week, he suggested that children should be able to veto divorce.

"The trend is for divorce ... to be seen as an individual issue not a collective decision," he says. "In my view such an important decision must be taken collectively. Children have a role in the decision-making. Of course, many parents already take their children into consideration, for example, staying together until the children grow up. But there might be arguments to suggest that the child's opinion should have some priority if the child is against divorce."

Children's charities attacked Prof Ringen's theory as putting an intolerable burden on children. And solicitors point to the fact that parents living together miserably may hurt children even more.

"Some couples who have decided to separate may feel the new law puts them in limbo for too long, preventing them from getting on with their lives and adversely affecting their children," says Ms Carter. While mediation is a possibility, as Relate advocates, it does not always work. "We have to face the fact that when marriages break down there is often deep- rooted conflict," she adds.

So as the law aims to make divorce more amicable, the truth is that many women are not content to wait standing by their man. Many, surely, will end up taking Ms Dean's approach. After Judge Hutton's judgment, she made clear what she and her husband were going to do.

"I just want to get the divorce through and get on with my life," she said. "My husband and I have now agreed that he is going to apply for divorce on the grounds of my adultery with my boyfriend."