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

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


 With its history spanning back to Biblical scriptures this essay will first look at the current aims and legislation on divorce followed by its practical application. It will then look at criticisms of the current law plus recent attempts at reform, followed by a comparison of the law in other jurisdictions in order to identify lessons and areas of reform.

Aims of divorce law

The law commission ‘family law: a ground for divorce’, stated that the role of divorce law was to be

“The support of marriages which have a chance of survival ... the decent burial with the minimum of embarrassment, humiliation and bitterness of those that are indubitably dead.” They wished to create “a ‘good’ divorce law.”

Social changes

The question therefore is what is sparking these calls for reform,

“any historian who claims that either the law has always shaped marital practises or that marital practices have always shaped the law, or that the causes of change were at bottom either legal, or economic and social, or cultural and moral, or intellectual, is offering a simplistic solution which is unsupported by the evidence. History is messier than that.”

One cannot ignore however the increase in divorces and in societal acceptance of divorce; greater financial and emotional independence of women; and, paradoxically, a greater belief in the emotional value of marriage, which has led to the rises in remarriages.

Existing law

The most common method of divorce has been named ‘The special procedure’ part one entails the petitioner lodging a petition at the court detailing the ground for divorce with subsequent supporting facts, a statement concerning any arrangements that have to make concerning any dependent children; and an affidavit confirming that all the information provided is the truth.

There is only one ground for divorce: irretrievable breakdown which must be evidenced by one of five facts as stated in Richards.

A petition can be dismissed during the many stages of scrutiny. The usual circumstances for dismissal are: inaccuracies on the face of the document for example the wrong form filed, insufficient evidence of adultery, failure to name to person the adultery had been with and parties still living at the same address. Providing that none of the above occurs the High Court declares a decree nisi and following no objection a decree absolute.

The Five facts: Adultery

‘that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;’

The intolerability is key is judged on a subjective test incidentally the Court Of Appeal held that the two requirements, intolerability and adultery, are independent, and that no causal link is required between the adultery and the intolerability. There is also a six month living together bar, which states that this fact cannot be used once the petitioner has stayed in the household for longer than six months after the incident.

An evaluation of this law may look into the fact that under this section adultery is defined as sexual intercourse between the husband or wife and a third party of the opposite sex. Homosexual intercourse or other forms of sexual activity not involving sexual intercourse will not constitute adultery.

Incidentally however this has not been a problem as both homosexual affairs and other forms of sexual activity with a third party have been used as evidence when making an allegation of unendurable behaviour

Intolerable behaviour

 ‘that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;’

This is currently the most common ground used – ‘the evidence presents little difficulty – after several years of marriage, virtually any spouse can assemble a list of events which, taken out of context, can be presented as unreasonable behaviour [sic] sufficient on which to found a divorce petition’. This fact was aimed to cover cases such as domestic violence however there have been a number of bizarre cases passed under it.

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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 ...

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