Historically, marriage has been regarded as an institution that should be firmly supported and not undermined by the state. However, increasing numbers have found their marriages intolerable and have sought an end to their marital obligations. Initially, it was only possible to divorce a partner who could be shown to be at fault. This inevitably leads to bitter accusations about past indiscretions and conduct and is hardly conducive to civilised conduct after the divorce. This bitterness can have repercussions on the welfare of any children as well as the parties’ willingness to co-operate in other matters, such as financial agreements.
Despite much opposition, especially from vocal clergy, the Divorce Reform Act 1969 introduced the concept of a no-fault divorce. This is now to be found in s1 (2) (d) and (e) MCA 1973, namely divorce after two years separation with the respondent’s consent to the granting of the petition, and five years separation if there is no such consent. The idea behind a no fault divorce is that it would reduce bitterness and antagonism and improve the ongoing relationship between the parties and their children. However, the provisions of s 1(2) (e) have been objected to by those who opposed the idea of an ‘innocent’ spouse being divorced against his or her wishes.
The Matrimonial Cause Act 1973 does not provide for a completely no-fault divorce system, and it retains fault-based facts of adultery, behaviour and desertion. Despite the availability of no-fault divorce, about 80% of petitions allege adultery or behaviour, which enables immediate divorce and obviates the need to live apart for a lengthy period. Thus, in reality, no fault divorce exists in one-fifth of cases, and the requirement of physical separation is often difficult to achieve for families on low income. Presently, therefore, most divorces do involve the petitioner-alleging fault on the part of the respondent. This encourages petitioners to rake over incidents in the past, often exaggerating them, in order to obtain a speedy divorce. This can increase the respondent’s resentment, lead to cross-petitions, antagonism and lasting conflict that can be very damaging to the welfare of the children.
Once it is recognised that divorce is inevitable in many cases, good divorce law should ensure that it provides an effective method of ending marriages that have not worked with the minimum of bitterness, leaving the parties in a position where future c0-operation in financial matters and the upbringing of the children can be achieved. The present law does not do that because of the tendency for most divorces to be fault based. In 1985, the Booth Committee on Matrimonial Causes Procedures recommended that all divorce should be fault free, since the fault element increases bitterness and stops sensible discussions about crucial future issues. The only basis of divorce should, according to the Committee, be irretrievable breakdown of marriage without specifying any further facts. This has been criticised, but in reality the lack of investigation in the special procedure adopted by the courts for most divorces means that this could be happening already if the parties agree not to contest the petition. There is little evidence that fault-based divorce reduces the divorce rate or saves marriage from failure, and from the community’s point of view the bitterness of fault-based divorce spills over into ancillary matters and children issues which are costly in terms of legal aid and human misery. For this reason, the dissolution of marriage should be a private matter for the parties concerned, and the parties concerned should just be able to state that the marriage has irretrievably broken down without providing specific facts, which may create hostility and pain for a family.
The Law Commission reported in 1990 (The Ground for divorce) and agreed that the way forward lay in no-fault divorce. Its report suggested that irretrievable breakdown without any further fact should be the basis of divorce. Once a person felt that their marriage had broken down, they should be able to lodge a sworn statement in court to that effect. The Law Commission thought that a joint application could also be made, and that, once this had happened, the parties should be given an information pack outlining what should happen next and the need to sort out financial arrangements and arrangements for the children. Conciliation would be available to assist the parties to reach agreement on these matters, and then after 11 months it would be open to either party to apply for a divorce stating that the marriage had irretrievably broken down. Thus, the important practical issues would be sorted out before the divorce was granted, and hopefully the no fault nature of proceedings would insure the minimum of bitterness. The Law Commission wanted the court to retain the power to refuse divorce on the basis of grave financial or other financial hardship. Critics argued that this would further undermine the institution of marriage, make divorce easier to obtain and could lead to parties instigating proceedings as a threat thereby setting the process in motion. There would also be no method of ending a marriage sooner than 12 moths, and the statistics presently show that many petitioners prefer not to wait once they have decided the marriage is at an end.
The Lord Chancellor published a green paper on divorce reform at the end of 1993, which mirrored the Law Commission’s view that they way ahead might well be no-fault divorce on the basis of irretrievable breakdown. A period of reflection once the initial application was made was considered a good idea. There has been considerable public debate on this matter, with opinion divided upon whether the proposals would make divorce too easy and undermine marriage. Most commentators felt, however, that reform was long overdue and hoped that the provisions of the Family Law Act 1996 were going to address the problem of the past.
Further criticism of the present system concerns the enormous financial cost of protracted litigation for the public purse, and there are those that have suggested that legal aid should be withdrawn in contested divorce cases and ancillary relief applications. Others suggest that it should only be available if the parties agree to conciliation.
Conciliation is a process whereby an impartial and trained individual meets with the parties and encourages them to reach an agreement on areas of dispute such as a financial provision and arrangements for the children. This reduces bitterness, saves costs and has an important role in making divorce less traumatic and adversarial. Conciliation may take place in court, and in 1971 a Practice Direction allowed courts to refer cases to the court’s welfare office if it was thought he could help with a conciliation process. Initially, pilot schemes were established, but have spread throughout the country and allow emotional and possibly confrontational issues to be handled in a constructive manner.
Conciliation is now compulsory in cases involving arrangements for children and s8 orders when the parties must meet with the welfare officer together with their legal advisers and any children over nine to try to reach an agreement. Criticism have been made, in that the parties often feel under pressure to reach an agreement in a short time, and it is very important that the parties are legally represented and kept fully informed. The law commission and the Green Paper did not suggest making conciliation compulsory in all divorces, as it is its voluntary nature that ensures c0-opertation and a willingness to reach an agreement.
The Family Law Act 1996 tried in statutory format to provide a mechanism which recognised that divorce was a social reality, but at the same time tried to get the couple concerned to properly consider whether their relationship was an end. The no fault concept attempted to reduce bitterness if divorce was to occur, but the information meetings and period for reflection and consideration was designed to encourage parties to think about reconciliation.
The most serious flaw shown by the pilot schemes is that it is a mistake to think that legislation can control human emotions at such traumatic time. The information meetings were badly thought out, and whilst objective information is desirable, the compulsory nature of the meeting antagonised and humiliated some participants. The nature of these meetings was also not properly thought through, and it is unrealistic to think parties really do spend the period for reflection and consideration doing these two things.
The complex statutory provisions, far from reducing conflict, actually increased the potential for an obstructive party to delay the divorce and obstruct resolution of issues regarding the children and finances, whilst the current law is far from ideal, and although the Family Law act 1996 had many laudable aim, the practical experience of the pilot schemes has led to the conclusion that the law would be ‘jumping from the frying pan into the fire’. Consequently, the government has abandoned plans to implement the far reaching provisions of the Family Law Act 1996 relating to divorce and decided to stick with ‘the devil we know’, the Matrimonial Causes Act 1973.
The Matrimonial Causes Act 1973 s5 provides that a divorce based on 5 years separation may be refused where the respondent can show that dissolution of the marriage would result in grave financial or other hardship to him or her and that it would in all circumstances, be wrong to dissolve the marriage. The aim of this provision is to safeguard an innocent spouse who does not wish to separate. This is rarely invoked and very rarely succeeds in preventing the divorce. This was seen in the case of Mathias v Mathias (1972) CA H and W married in 1962; they separated in 1964. W had not done much work since that date, believing that her main responsibility was to look after their child. Her income was derived from maintenance and supplementary benefit. H petitioned for divorce, on the ground of five years’ separation, in 1971. W argued that a decree would result in ‘grave financial hardship’, since her maintenance payment would be reduced and she stood to lose a widow’s pension. A decree was granted and W appealed. W’s appeal was dismissed. In considering the matter of ‘grave financial hardship’, the court ought to consider the boarder aspect, that is, whether ‘it was not right in the public interest to end a marriage which had become a mere empty shell’
In today’s modern age, it also rarely succeeds as the spouse seeking divorce can compensate its partner for any financial loss
In conclusion, therefore, it does appear that the present system and procedure for obtaining divorce fail the parties, their children and the community in general. Whilst no reform seems perfect, a move towards no-fault divorce in the Family Law Act 1996 with an emphasis on conciliation would go some way to ensuring that failed marriages end with the minimum of animosity and that future relationships between family members are not irrevocably soured. However, a completely no-fault scheme may leave those who have been grievously upset by the behaviour of their spouses feeling badly treated. Whatever reform is made, there will always be those who feel let down at the ending of their relationship. Thus the current system does nothing to save a marriage, despite the provisions intended to promote reconciliation, which, as we saw, had little effect, the law in fact thrust the parties further apart by encouraging the making of allegations of misconduct against each other or by requiring them to separate. Attention is placed upon how to prove irretrievable breakdown rather then on how to mend the marriage
A further argument that could be out forward in regards to the community’s interest is the emphasis children may have in this process of dissolution of a marriage. A study from Joseph Rowntree Foundation reviewed the existing research into the nature of, and possible underlying causes of, particular outcomes of those experiencing parental separation. At the time of separation, children in the short term are likely to experience unhappiness, low self esteem, problems with behaviour and friendships, and loss of contact with significant part of their extended family. However the long term effects, according to the study in particular is alarming. There is a higher probability among children of separated families, to have or be at an increased risk of behavioural problems, including bedwetting, withdrawn behaviour, aggression, delinquency and other anti social behaviour. They also tend to report more depressive symptoms and higher levels of smoking, drinking and other drug use during adolescence and adulthood. However it cannot be assumed that parental separation is their underlying cause.
For those reason, it would be in any community’s interest to preserve a marriage. Our future is based on the young generation, if the law does not help us to preserve children’s upbringing, then in turn it will effect our future community and economy, and if what the research states may be true, the future will be effected greatly, an example can be seen in the increase of crime or anti social behaviour.
Thus it needs to be examined how the courts may exercise judgements in the interest of acting on the community’s behalf, when children are involved. In every case where there are children of the family under the age of 16, or whom the court expressly directs should be included for example if the child is disabled, it has to consider the arrangements proposed for the children’s future after their parents divorce, whether it should exercise any of its powers under the Children Act 1989 with respect to them. In exceptional circumstances the court may direct that the decree is not to be made absolute until further order, if it is of the opinion that it is likely to have to exercise its powers under the Children Act with respect to certain children of the family and it needs to give further consideration of the case. The district judge may, if not satisfied, direct that further evidence be filed, that a welfare report be ordered or that the parties attend before him.
As discussed previously, as we currently live in a versatile, multicultural and ever changing society, the law may sometimes fail to accommodate current change and issues. Cohabitation is also an aspect that needs to be discussed in order to address any form of a communities and its interest the law society published its proposals for the cohabitation reform in July 2002. The document makes clear that there was a need to define cohabitants in such a way as to ensure that those who are in need of protection were given it. It examines various methods of defining cohabitants to achieve that aim. For reasons given in the paper, cohabitants were identified as two people (either opposite sex or same sex) living together in the same household in a relationship analogous to that of husband and wife. The society also believes that the law should provide some protection for cohabitants without requiring them to register their relationship cohabitants, while not achieving the status of a married couple, should have some redress in the event of a relationship breakdown, when their financial and property rights need to be adjusted. The purpose was to try to ensure that they did not suffer financial disadvantage as a result of having shared their home, income and the upbringing of any children with another person. Thus they may have the entire characteristic as married couple, only that they are not registered; in such situation the breakdown of the relationship is more of a private matter, as there relation will not be documented as a married couple’s. My personal view in this matter would be that if cohabitant right were given, it would undermine the concept and value of marriage. Marriage is a traditional commitment and marriage cannot be preserved if cohabitation was allowed, it would raise questions of why marrying at all, if cohabitants are going to be given quasi-marital rights anyway? Society is evolving and people are adopting a different frame work of mind, I believe in this matter, the courts should make a clear distinction between marriage and cohabitation, it may reduce the divorce rate but implementing such a idea, I personally think will not be acting on the communities interest. Cohabitants should have some form of protection but that merely cannot be compared to the protection married couples have.
Marriage is a lifetime contract and commitment; implanting cohabitation rights into legislation could in turn affect society’s morals and values. Although times are changing, we should not forget tradition as that itself does play a big role in our lively hood.
Taking a chauvinist approach it would appear then men would be in a better position if they have a cohabitation relationship then a marriage. As for a married man continuing to live with a partner, marriage is not a distinguishable condition, as there are no benefits over cohabitation; for a married women continuing to live with a partner, there are marginal benefits over cohabitation, but only obtained on the death of a man such as the widow’s benefits, available for those women aged 45+.
Again for a married man whose marriage ends in divorce, there is usually more serious damage to his life then if he had cohabited. For those married fathers with children, the damage may be very serious, however for a married women whose marriage ends in divorce, there are considerable benefits compared with cohabitants. Women now almost automatically obtain custody of children no matter what their behaviour, and also profit financially from divorce. This can be interpreted by Judicial Static’s Annual Report 1993, in which the divorce cases that year was 162,579, and the divorces granted by gender to women was 112,000 (71%) and men 45.000 (29%).
It could be stated that the ‘dissolution of marriage ought always to require a real exercise of judgement by the court, acting on the Community’s behalf’ is not well maintained. Those who drafted the ECHR including Article 12, granting the right of “men and women to… marry” must have done so on the understanding that the step “ to marry” would
- Result in the individual being in a distinguishable condition from cohabitation;
- And that it would provide the individual with substantive benefits and protection not available in cohabitation.
Conclusion
Bibliography
- Bromley’s Family Law, Ninth Edition, By Nigel Lowe & Gillian Douglas.
- Briefcase On Family Law. LB Curzon. Second Edition
- Nutshells Family Law, Fifth Edition, Tony Wragg.
- Article on Family Law, August 1998. Page 449
- Per Karminski LJ: Mathias v Mathias (1972) CA
- Matrimonial Causes Act 1973
- Newsline Extra. Article on cohabitation and the Law Society. October 2002
-
Consequence, 2nd Edition, The Cheltenham Group, February 1998, ISBN 1 900080 03 6.
WORD COUNT:
Loan parents
Private matter for the parties concerned?
Bromley’s Family law, Ninth Edition, By Nigel Lowe & Gillian Douglas, Page 23.
Matrimonial Cause Act 1973
Bromley’s Family Law, Ninth Edition, Nigel Lowe & Gillian Douglas, Page 235 & 237
Briefcase on Family Law, LB Curzon, Second Edition, Page 47
Per Karminski LJ: Mathias v Mathias (1972) CA
Bromley’s Family Law, Ninth Edition, By Nigel Lowe & Gillian Douglas. Page 236
Article on Family Law, August 1998. Page 449
Matrimonial Causes Act 1973 s41 (as amended)
Newsline Extra. Article on cohabitation and the Law Society. October 2002
Consequence, 2nd Edition, The Cheltenham Group, February 1998, ISBN 1 900080 03 6.