What lessons can be learnt from the existing law of divorce which may be helpful in reforming this area of law?

The test for this was ruled to be both subjective and objective, Bagnall J stating that the question should be

“can this petitioner with his/her character and personality with his/her faults and other attributes, good and bad, and having regard to his/her behaviour during the marriage, reasonably be expected to live with this respondent”.

 A similar approach was taken more recently in the Court Of Appeal where is it was confirmed that the characters and personalities of the parties are relevant in deciding what conduct they should be expected to bear.

Behaviour requires conduct not just a state of mind, defined as an action or conduct by one spouse which affects the other. It may take the form of acts or omissions, it may also be a course of conduct but it must have some reference to the marriage. Mutually bad spouses (i.e. spouses who are equally bad in similar respects) can reasonably be expected to live with each other

An analysis of petitions showed many are inclined to make it look as bad possible, lest the court be tempted to probe more deeply or as little as they think you can get away with, lest the respondent be goaded into defending either the petition itself or ancillary issues.

2 year dissertation

‘that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;’ 

This must be De facto separation with complete withdrawal from the obligations of marriage following the two households test. There must also be an intention to desert that is permanent, with lack of consent by deserted spouse and reasonable cause.   In Quorashi it was ruled that the Husband knew he was endangering his first marriage by taking a second wife, and his first wife had reasonable grounds for leaving him.

Petitions based on this ground are very rare. However the court also recognises ‘constructive desertion’. The introduction of non-molestation orders and other remedies for domestic violence has made this less significant than it used to be. It was however used where the behaviour of one spouse was such as to leave the other with no real alternative but to move out. In those circumstances, the spouse who moves out can still claim to have been deserted by the other.

Two year separation

‘that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted’ 

This also requires two separate households however the courts have proved to be lenient, in Fuller the husband stayed as a tenant to wife and new partner, and here the divorce granted, conversely in Mouncer the couple lived in same house had different bedrooms, spoke and occasionally ate together and the divorce not granted.

As with desertion this needs some element of intention as well as physical separation. It can also be unilateral. The mental element of living apart involves the recognition throughout the relevant period by at least one of the parties that the marriage is at an end. The respondent must consent to granting of decree.

It has been noted that due to the need for consent for this fact, some have opted to wait for 5 years in order to obtain an ‘easier’ divorce.

Five year separation

‘that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”)’ 

Consent is not needed. Matrimonial Causes Act provides a special statutory defence to the respondent to a petitioner based solely on five years separation. The defence is very rarely raised successfully exceptions

On comparing the two facts based on separation one can see an interesting scenario. A long sentence prisoner petitions for divorce shortly after his release. It seems that his petition should succeed if he made up his mind to do this five years ago, but told his wife nothing about it. But if he made up his mind to divorce her just before he was released it seems that the petition should not be successful.

        

Protection for respondents

Defending a divorce is tactical in nature, but is in essence, futile, it also incurs large expense, and with no support of legal aid, many lawyers and reluctant to become involved. The vast majority of divorces are currently undefended. There is no attempt to ensure that what is stated is actually true. The law presumes that is the defendant doesn’t attempt to defend the petition then the case can be assumed to be true.

Matrimonial Causes Act aims to protect innocent spouses who do not wish to be divorced. It  allows the Court to rescind a decree nisi if the respondent proves that he/she will suffer grave financial or other hardship (religious or social hardship) and it would be wrong in all circumstances to dissolve the marriage.

Financial hardship and grave hardship have been successfully used in Grenfell the grave hardship was based on the change of status from being a separated wife to a divorced woman.

Other hardship must be evidenced by specific hardship as in Banik where ostracism as alleged and substantiated by Hindu wife-respondent. Merely that divorce is contrary to religious principles is insufficient

Ss21 – 25b Matrimonial Causes Act covers financial issues and orders can only be made after the decree nisi and take effect after the decree absolute. The respondent can ask the court to consider his/her financial situation after divorce. And the Court has the power to refuse to issue decree absolute unless this is satisfied. This power however is used as a tactical manoeuvre particularly in cases involving ancillary relief

Link between procedure and substantive law

The Law Commission identified 6 criticisms in their paper ‘Family Law: The Ground For Divorce’

1. It’s confusing and misleading with a gap between theory and practise
2. It’s discriminatory and unjust. ‘Justice’ meaning accurate allocation of blameworthiness marriage breakdown.
3. It distorts the parties bargaining positions strength depending upon a combination of the anxiousness to be divorced and how easy they will find it to prove one of the five facts. revenge or a new partner therefore can play their part.
4. It provokes unnecessary hostility and bitterness due to the arbitrary system and need for allegations.
5. It does nothing to save the marriage. Obligation either to make allegations against the other or to live apart for a lengthy period. Petitions on behaviour may destroy any lingering chances of reconciliation. Focus is on how to prove the grounds for divorce.
6. ‘Divorce on Demand’ an undefended decree can be obtained in a matter of weeks. If both parties are contemplating divorce, the system gives them every incentive to obtain a ‘quickie’ decree and think out the practical consequences later.

Why do we need Reform?

“The reasons for reform is ... that the law should reflect social reality and the fact that many divorces are undefended and un-investigated.”

“We cannot afford serial marriage in our society: poverty is an inevitable as the damages to children from the emotional state from their parents. Yet is seems to be an unspoken political decision what attempts to make divorce more difficult and totally unacceptable. Even while public debate focuses on the plight of single parents and their children, the fact that over half of them are created by divorce and separation is overlooked. It is astonishing that any government should seriously contemplate easing divorce while simultaneously expressing anxiety about single parents, their children and society’s health”

The failed attempt

The Law Commission’s discussion paper ‘Facing The Future’ and Report ‘The Ground For Divorce’ discussed above formed the basis for the reforms contained in the Family Law Act.

Irretrievable breakdown was to be kept, but established by way of statement of martial breakdown followed by a period for reflection on the practical consequences of divorce and consideration of whether the breakdown in the marital relationship was irreparable.

Pilot schemes were set up to study the information meetings and mediation schemes. Based on the result, particularly in relation to information meetings, the Lord Chancellor’s Department in 2001 decided not to implement the full act and Part II was first postponed and then repealed.

The act has been criticised in many areas. The act assumed an idealistic interpretation of divorce. Included in these assumptions were, that couples wanted to be reconciled, and that these same people wished to sit in a room together and mediate their dispute. In addition it was also believed that time would be spent reflecting the relationship as opposed to just waiting for the time to expire.

A Quick global look

In comparative jurisdictions, there has been a consistent move towards no fault legislation, together with an increased focus on the use of mediation. More recently, many have introduced parenting programmes in order to promote continuing contact between parents and children after divorce, and encourage parents to reduce the conflict between themselves and work co-operatively for the best interests of their children.

Some countries in Europe have requirements for the couple to attempt reconciliation before they can proceed to divorce. There is no evidence that these mechanisms are effective. Conversely however in Malta divorce is not allowed.

The lessons learnt

There are a number of lessons to be taken from other jurisdictions as well as our own history which can help reform the law on divorce.

• Saving marriages at the point of divorce is not effective.
• Although mediation may be encouraged there is little evidence of its actual effect
• People facing the ending of their marriage need and appreciate information, legal advice is still crucial.
• Expectations of the way people facing divorce will behave needs to be modest.
• There is recognition that the use of adultery as a ground is flawed.

A recent consultation paper from the Department for Constitutional Affairs, was aimed at modernising divorce court rules, and broached the matter of an absolute ban on the naming of co-respondents, or at least a greater barrier to naming them. The paper also proposes to bring the terms used by the divorce courts up to date. 

Fault based divorce

Since the creation of the Matrimonial Cause’s Act, there has been a move away from the fault based divorce. The Archbishop of Canterbury’s report proposed irretrievable breakdown as the sole ground for divorce. The Law Commissions report of the same year called for evidence for only one of the five facts, two of which are not fault based. Their effect was shown in the big rise after the enactment of the Divorce Reform Act

The no-fault principle has met mixed responses, some critics targeting the vagueness of the term irretrievable breakdown; others worried about the availability of divorce by consent, with knock on effect of the stability of the nuclear family. Under the Family Law Act, divorce would have become a non-fault process over time.

Conclusions

Users of current Divorce law are calling for easier, and faster divorce proceedings whilst legislation is introducing slower and more complex proceedings, trying to preserving marriage and in turn the family as an institution.

In trying to strike a balance between the two needs, one can only question. Is this an exclusively Christian idea overtly making divorce difficult? What is stopping the creation of the ground ‘I don’t want to be married anymore’? Is it even necessary that the divorce be obtained in a formal or judicial manner considering the law already uphold marriages that we not? And isn’t the special procedure just one step away from this?

I think the main lesson that can be learnt from the existing law of divorce, is a balance needs to be struck between both the needs of the users and the political and social impacts. Finding this balance would help set a clear and concise aim which would lead to reforming this area of law.

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