Leading Article: Separation is the issue, not divorce

A CABINET committee is, we report today, divided over a proposed simplification of the present laws governing divorce. A majority supports the recommendations of the Law Commission three years ago. These advocated replacing the present two- and five-year waiting periods (with and without mutual consent respectively) with a one-year 'cooling off' period and improved availability of out-of-court conciliation procedures.

A minority argues, not unpersuasively, that such a change would be damaging, not least to the Conservatives' claim to be the party of the family. They want the waiting period to be two years, with the emphasis on reconciliation rather than conciliation.

Few things are more problematic than the state's role as social engineer, especially in the private domain. Many people believe the law is already too lax. With divorces in Britain reaching a record 156,679 cases last year, they might seem to have a point. To this camp, divorce lies at the heart of such social ills as juvenile crime, and the scarring of young minds that divorce inflicts. Making it more difficult would encourage people to think harder both about marrying and about divorcing. In the opposing camp are those who point out that it is not primarily divorce that causes problems but the breakdown of marriages and the resulting separation. They see divorce as a legal formalising of what has already irretrievably happened.

Tougher divorce laws would simply result in more prolonged pain and fewer people marrying - a trend already well established: in 1991, when divorces rose by 3 per cent, marriages fell by 7 per cent. Arguably, marriage might become more popular, albeit even briefer than the present average of little over nine years, if it were easier to end.

One thing only is certain: that mediation is better than litigation when a marriage has broken down. At present, all available counselling and mediation services are hopelessly underfunded and overstretched. It would be good if the Government could cut the huge annual cost of legal aid in matrimonial and family proceedings and at the same time spare divorcing couples the agonies and costs resulting from them. But a substantial slice of the resulting savings should go to improving the availability and quality of mediation.