Extract from “Grounds For Divorce” – Davis and Murch
It is said that we no longer have defended divorces. But, as noted in the previous chapter, the number of ‘answers’ filed is by no means insignificant.
The question therefore arises: how is it that so few of these initially contested cases reach the point of a full hearing before a judge?
Part of the answer lies in the introduction of a further sifting mechanism in the form of a preliminary appointment on court premises. All our evidence on this subject is drawn from the Conciliation in Divorce research project, when we studied these appointments as part of a broader examination of mediation on court premises.
It may be, therefore, that the appointments are best understood as a rationing device—a form of sifting mechanism designed to limit the demands on judicial time and on the Legal Aid fund. Only the most articulate parties succeed in breaching the professional cocoon within which the appointments are conducted.
To some extent these appointments (and the other obstacles to defended divorce, to be discussed in Chapter 9) are anticipating a change in divorce law. But it is unsatisfactory to use preliminary appointments for this purpose. Even if the registrar acts with restraint, there is an obvious risk that the administrative and financial pressures making for a speedy outcome will undermine the respondent’s legal right to defend the divorce.
Were respondents in a position to act on their sense of grievance, it would place an intolerable burden upon courts and upon the Legal Aid fund. What happens therefore is that the problem, having been created, is effectively buried. The main agents in achieving this are the parties’ solicitors.
One may ask why, given that he was so uncertain about the state of his marriage, did he approach a solicitor—whose job, after all, is to supply legal remedies? The answer is quite simple: although uncertain of the action he wanted to take, he needed to know the legal position. He was aware that reconciliation might not be achieved, in which case he wanted to safeguard his legal rights. So in opting to consult a solicitor, it is not that he made the wrong choice; one might rather say that solicitors, by virtue of the system under which they are financed—and not helped, in some instances, by their disinclination to engage in any form of counselling activity —are ill-equipped to perform the dual role which many of their clients are seeking.
The only alternative, aside from changing the law, is to do what courts and legal advisers spend a great deal of their time doing at the moment, which is cajoling and bullying the parties into swallowing their reservations and their pride and accepting that the legal forms are merely a contrivance, having no bearing on their real character and relationships.