A compulsory three-month “cooling off” period in which estranged couples must find out about the implications of a divorce is recommended in a major new report on family law reform to be published today.
The compulsory delay before divorce proceedings could begin would be used to encourage both parties to reflect on their marriage and to gather information about the scope for reconciliation and key issues such as the financial impact of a split.
The recommendations are the heart of a report proposing a far-reaching overhaul of the law aimed at putting marriage at the heart of family life.
“This three-month period is endeavouring to save saveable marriages,” it declares.
The report, Every Family Matters, comes from the Centre for Social Justice, the think-tank set up by the former Conservative leader Iain Duncan Smith, which has had a major bearing on David Cameron’s social policy-making.
Another key conclusion from the report is a rejection of moves to give couples living together the same legal rights as those who are married.
The authors, a team of lawyers led by David Hodson of the London-based International Family Law Group, also call on the Government to give “strong encouragement” to marriage preparation classes, although they fall short of insisting that such advice be compulsory.
Mr Duncan Smith said: “Instead of giving cohabitees similar legal rights as married couples, which would only undermine marriage, we have to do more to warn people that they can only secure the legal protection of marriage by getting married.
“The cooling off period and the requirement for estranged couples to receive information about the implications of divorce will help to save some worthwhile marriages. This is based on the highly successful Australian system which is accepted by most as a genuine aid to family stability.”
On pre-divorce counselling, the report says: “Before any proceedings in family law can be commenced, with certain exceptions (such as domestic violence), the applicant must have obtained, received, attended at or in other ways have had the opportunity to consider certain information.
“This would include reconciliation opportunities and resources, alternative dispute resolution (settlements reached out of court), impact on children, costs and court procedures … A certificate of attendance would be required before proceedings could be issued.
“We propose a three-month period of reflection and consideration before the divorce petition goes ahead.
“This is a direct encouragement to the obtaining of this information during the three-month period to reflect on the relationship, the impact of any divorce … and any prospects of reconciliation.”
The report warns that lax divorce laws and related procedures are “causally implicated in high rates of family breakdown”.
The report makes the case for the retention of a fault provision during divorce proceedings: “While in very many marriage breakdowns there is fault on both sides, there are some where fault lies wholly or very substantially with one spouse alone and it would be wrong in these cases for there not to be any fault basis.”
