Editorial Committee of the Cambridge Law Journal

Divorce: Where Next? by Michael FreemanReview by: Andrew BainhamThe Cambridge Law Journal, Vol. 56, No. 1 (Mar., 1997), pp. 237-238Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4508328 .

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Divorce: Where Next? Edited by MICHAEL FREEMAN. [Aldershot, Brookfield, Singapore, Sydney: Dartmouth. 1996. Ix, 226 and (Index) 12pp. Paperback £16-40 net. ISBN 1-85521-682-5.]

THIS collection of essays appears just as English divorce law is about to receive its most radical overhaul for over a quarter of a century. The contributions reflect a wide spectrum of informed opinion on various aspects of the divorce process. The primary focus is on the English reforms but the issues highlighted have a more global ring and are being confronted in many other jurisdictions. After an editorial introduction providing a general overview, there are chapters dealing with the demographic and social character- istics of divorce patterns (Gibson); negotiation by lawyers and mediation (Piper); propery and financial issues (Deech); pensions (Masson); divorce and ethnic minorities (Schuz); "divorce" between children and parents (Freeman) and feminist perspectives on the consequences of divorce (Carbone).

Gibson's essay makes fascinating reading in putting the whole question of divorce rates into its wider demographic and social context. Among Gibson's more interesting findings is his conclusion that, whatever may be the crucial influences on the divorce rate, the state of divorce law and legal change have had "little long-term impact on the rate of marriage breakdown". This would seem to corroborate what many (but not all) commentators have felt instinctively-that the government's apparent belief that prospects for reconciliation and the rate of breakdown can be significantly influenced by the reform of divorce law and procedure is deeply misguided. Cretney's sometimes entertaining contribution is as good a synopsis of the process leading to the current reforms as one is likely to find anywhere and can be unhesitatingly recommended to those who want to discover quickly how we arrived at the current position. Commenting on the statutory period ostensibly for "reflection and consideration", Cretney speculates that some of those concerned may, inter alia, "prefer to spend this time in the far more pleasurable activity of conceiving-necessarily illegitimate-babies". If this is right, it would arguably be better for the legal system to admit openly divorce by unilateral repudiation-but Cretney is not enthusiastic about this prospect. Perhaps the fundamental question which needs to be asked is what legitimate basis there can be for perpetuating a marriage where it has ceased to be consensual, given that consent is of the very essence of the marital tie (reinforced at its inception by the law of nullity).

Michael Freeman's chapter is not really concerned with "divorce" at all but with the comparatively recent phenomenon (at least as far as England is concerned) of attempts by children to secure legal independence from their parents-as where a child seeks a residence order to sanction a living arrangement with friends or relatives. Freeman advocates freer access to the courts for children by removing the requirement of leave in the Children Act 1989. His argument that, if leave should continue to be required, the issue should be governed by the welfare principle is questionable. Given the indeterminacy of welfare assessment this could just as easily be manipulated to deny children access to the courts as it could to allow it. More convincing is his call for greater reference by the courts to professional psychological assessments of children's understanding in preference to "the intuitive argu- ments the judges currently use".

Three of the contributions share a particular concern about the adverse consequences of divorce for women. Masson's chapter is an informative and detailed treatment of the effect of divorce on pension rights. Her central

C.L.J. Book Reviews 237

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The Cambridge Law Journal

argument is that the principles of fairness and neutrality, which underscore the modern right of each spouse to divorce, dictate that adequate pension provision should be made for divorcing wives (and in a minority of cases, husbands). She argues for pension reallocation or splitting and rejects the notion that there can be adequate compensation for the loss of pension rights by "trade offs" with other assets. This perhaps begs the question whether the realisation of the pension provision for which she argues might require some readjustment or "trade off' in relation to other liabilities. Put crudely, if men are to be required to relinquish a substantial proportion of their pension entitlements they may well be less inclined to transfer their interests in the former matrimonial home or to meet their liability for child support or both. And the case for spousal support would be even more difficult to argue than it already is. It was not entirely clear where Masson stands on this question. Carbone's essay covers different feminist perspectives on the consequences of divorce for women and focuses on the gendered division of family responsibilities and the qualitatively different attachment to children which, it is said, mothers (as opposed to fathers) have. There is a division among feminist schools about whether "genuinely shared child-rearing, independent of gender roles, is possible or desirable". Carbone brings out these disagree- ments, and also the common ground shared by all feminists, very clearly and succinctly. This is a stimulating paper, refreshingly devoid of incomprehensible jargon. Finally, Ruth Deech's offering is as usual good entertainment value. In part it is a stout defence of the principles of the Child Support Act and a denial that men and their second families have really had much to complain about despite all the hype. In much the same vein, Deech is quick to recognise the dangers to women in a system which weakens the role of legal advice and replaces it with widespread mediation-but somewhat less quick to acknowledge the commensurate dangers to men. While no-one would deny that divorce can be especially hard on women and children economically, it would surely have been possible to track down at least one person who believes that it can also be hard on men. After all, the potential loss of home, children and a hefty slice of income are not conspicuously attractive life changes.

Divorce is an emotive subject upon which almost everyone has an opinion, and usually a strong one. It is difficult, perhaps impossible, to avoid value judgments and reach for truly objective evaluations. The continuing debate is quite properly about these underlying values and there is no doubt that this volume is a welcome addition to that debate.

ANDREW BAINHAM

238 [1997]

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