What the Bill will really mean

The Family Law Bill finally emerged from a three-month grilling by MPs last night. Is it as battered and bruised as is commonly portrayed?

Lord Mackay, the Lord Chancellor, insists that the fundamental principles have remained intact despite numerous concessions.

Neither side on the extremes of the argument - those opposed to divorce in principle and those who think the Bill Draconian and interventionist - will be happy at the outcome, despite the Bill's objectives.

The aims, which have now been written into the face of the Bill, are:

t to support the institution of marriage;

t to help save marriages that had a chance of being saved;

t to require couples to consider carefully the consequences of divorce before taking any irreversible decisions;

t to minimise bitterness and hostility and damage to children

t to keep the costs to the parties and taxpayer to a minimum.

Whether the Bill will live up to these promises and whether divorce is going to be "harder" or "easier" are still wide open questions, but the legal process of obtaining a decree will certainly be longer in about three-quarters of all cases.

The starting point in the divorce process is the mandatory information session which must be attended by spouses either separately or together. It is at this point that people seeking divorces will be encouraged to attend a meeting (free to those on non-contributory legal aid) with a marriage counsellor. They will also receive information on:

t the importance to be attached to the welfare, wishes and feelings of children;

t improving parents' understanding of the ways in which children can be helped to cope;

t financial questions and the services available to help;

t mediation - the resolution of disputes through discussion and negotiation rather than court battles;

t availability of independent legal advice to each of the parties;

t the divorce and separation process.

The Bill originally provided for divorce at the request of one partner after a 12 month period of "reflection and consideration". But the Commons voted for the original 12 month waiting period to be extended to 18 where one party asks for further time or where there are children under 16 in the family.

In some people's estimation, including Cardinal Basil Hume, the leader of the Roman Catholic church in England and Wales, that signals the seriousness of marriage.

Lord Mackay, who already chairs an inter-departmental working party on marriage, is also creating an advisory board to advise him, among other things on the need for, and results of, research into supporting marriage and preventing marriage breakdown.

Following an ambush by Tory and opposition MPs during the Bill's Committee Stage, there will be a three-month "quarantine" period between attending the initial information session and the making of a statement of marital breakdown. The idea is to allow time for couples to contemplate the possibility of reconciliation before the divorce process gets going.

How many couples will opt for help from a marriage guidance counsellor at this stage is an unanswered question. Critics claim most couples would have explored all the options before contemplating divorce, and that the provision builds in unnecessary delay that could be damaging for children in need of settling into a new way of life.

But during the Committee Stage, the Government promised a free marriage guidance session during the three months for those eligible for non-contributory legal aid. It also promised to consider providing state funding for counselling during the rest of the cooling-off period.

The irretrievable breakdown of marriage will no longer have to be proved by adultery, unreasonable behaviour, desertion or separation. Three-quarters of all divorces are currently fault-based, leading to divorces within a few months.

But following the Bill's mauling in the Lords and Commons Committee Stage, it now builds on existing law by emphasing that conduct could be relevant to court orders covering the division of money and property and the future care of children. The intention is the better scrutiny of cases where a parent has set up home with a new partner.

Apart from sweeping away the quickie divorce, the Bill strengthens the so-called "hardship bar", the right of an aggrieved party to delay or prevent outright a divorce on grounds of "substantial or financial or other hardship" to a spouse or child.

But interpretation will be a matter for the courts, and it is unlikely that very many divorces would be delayed indefinitely.

There is nothing in the Bill that actually insists that couples use mediation - the resolution of disputes through discussion and negotiation - instead of resorting to the more costly business of exchanging solicitors' letters and going to court.

But it is none the less a key element of the legislation, while legally aided people will be under more pressure to use mediation than private payers.

During the Bill's tortuous parliamentary passage, it has been suggested that mediation might result in some couples getting back together. But experts in the field have already warned against unrealistic expectations.

There will still be a need for legal advice while a couple attempts to hammer out financial deals, so mediation cannot be viewed as a panacea.

It is often crucial, however, in persuading both parents to act in the best interests of their children and in fostering the idea of continuing parental responsibility.

In some cases, the benefits of mediation may be offset by the Bill's provision - unique to Britain - that a divorce cannot be granted until arrangements for finances and children have been made.

Recalcitrant spouses might insist on burdensome terms as the price of allowing the divorce. Lord Mackay's answer to that is that people should not be entitled to enter a second marriage without sorting out the consequences of the first. The risk is that some people will not bother marrying a second time.