The Present Law Of Divorce

Divorce occurs when a marriage comes to an end. It is said that divorce law should seek to support the institution of marriage since it is not only a heartache for the couple going through a divorce, but it involves expenses to the state. Divorce can be seen to shake social stability by challenging the traditional image of the family. According to Ruth Deech, the increased divorce rates will result in greater understanding of divorce as a solution to marital problems so people will be more willing to use it. The pressures on the divorce system leads to a relaxation of practice.

It is also said that the law should not exacerbate the bitterness between the parties although opponents would state that increased bitterness is an inevitable part of divorce. Expecting a legal system to enable parties to separate happily married and have a good divorce is imaginary. The purpose should not be to exacerbate the bitterness but to remove it. Where children are involved, divorce law should promote a continuing relationship between the spouses. According to Beck and Beck-Gernsheim, divorce is not the legal end of marriage but transforms itself into a new phrase of post marital separation marriage.

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The current law according to the MCA 1973 involves the special procedure. A petitioner can lodge at the court the petition outlining the grounds for divorce, a statement concerning the arrangements for the kids and an affidavit confirming the truth of the documents. There is no need to prove the legitimacy of what is stated unless the respondent attempts to defend the petition. The expense involved in defending the petition and the reluctance of lawyers to become involved and defend divorces mean that only a few petitions are defended. In 2017, the government introduced a trial project to allow someone to use a digital divorce application form for those acting without legal advice. According to Liz Trinder, it has potential to provide a fast and accessible process for persons going through a stressful divorce. The divorce decree is completed in 2 stages: the decree nisi is pronounced and later the decree absolute is declared.

Divorce can also occur through fault-based petitions. The sole ground for divorce is set out in s.1(1) MCA 1973: the marriage has irretrievably broken down but the only way of proving irretrievable break down is by proving one of the 5 facts set out in s.1(2). If none of the 5 facts are proven, a divorce cannot be granted. A no fault system is a divorce system which requires the parties to allege and prove something blameworthy about the other party. It could involve proof of a matter which did not show blame or not require proof. The current law under MCA 1973 is a mixture of a no fault and fault-based system. It is no fault in the sense that the ground for divorce is irretrievable breakdown and it is fault based because the only way one can prove that is by relying on one of the facts which include fault based factors such as adultery (s.1(2)(a) MCA 1973) and unreasonable behaviour (s.1(2)(b) MCA 1973). It would be possible to have a no fault-based divorce if a party relies on the 2 or 5 year facts but most divorce rely on the fault based facts.

There are many reform proposals on the topic of divorce. Firstly, a notification system should be implemented, and this is recommended by the Trinder report. There is no supervision of this scheme and no facts need to be proved. All that is needed is for one or both parties to notify the state that the marriage has broken down irretrievably and 6 months later, one would confirm the intention to divorce and it would then be issued. This would make the law on paper be the same as the law in practice. Secondly, addition of no-fault ground. The No Fault Divorce Bill 2015 proposed a simple amendment to the MCA 1973 which would introduce a 6th fact: 2 parties had signed a declaration that the marriage had irretrievably broken down. This retains fault for cases where it is clear who is responsible for the breakdown of the marriage but allows a no-fault divorce in cases where the parties do not wish to raise the issue. Thirdly, the modern law can be modified. The MCA 1973 should be kept but the current facts should be amended. The 2-year waiting ground should be reduced to one year. Lastly, according to the Coalition for Marriage, there are 5 reasons not to allow no fault: (1) there will be an extra 10,000 divorces per year, (2) marriage will be reduced to a contract that can be ended with minimal notice and lose its special status, (3) any reform would be unfair to a spouse who has been committed to their marriage vows and will now be divorced with quick notice, (4) provisions under the current law that allow the court to prevent a divorce if it causes a party severe financial hardship would be lost and (5) reform would trivialize marriage.

However, there have been some criticism of the present law. Firstly, it can be confusing and misleading. The confusion is said to flow that although irretrievable breakdown is stated to be the ground for all divorces, it is not enough to show that the marriage is irretrievably broken down because one of the 5 facts must be proved. Mears states the law is not misleading because lawyers can explain the position of the law to their clients and according to the Trinder report, the public is unaware that the behaviour fact does not require serious allegations. Secondly, it can be said to be unjust and discriminatory. The Law Commission states that the ground of 2 years’ separation is not readily available to those who are unable to afford alternative accommodation for those years. Those who cannot afford to live separate must use one of the fault-based grounds or wait 5 years. Thirdly, it is said to distort the parties bargaining positions. Where one spouse is desperate to go through a quick divorce, the other spouse will be happy for there to be a delay. Since the party who is wants the divorce is dependent on the other’s party consent defend the petition, this gives the non-consenting spouse a weapon that can be used in the bargaining process.

Fourthly, it provokes hostility and bitterness. The system encourages the parties to use the fault-based grounds because they are quicker to use, and this can lead to distress and bitterness in the making of the allegation because those are made in public documents. However, some may say that this is an inevitable part of divorce. Fifthly, it does not nothing to save the marriage. The parties are required to focus on making allegations rather than saving the marriage. The only provision that may assist with this is contained in s.6 MCA 1973. Lastly, it can make things worse for the children. Children whose parents divorce may suffer more if the parents are in constant arguments. The law does not seek to reduce conflict, but it may exacerbate by focusing on one party’s blame worthy conduct.

The Divorce, Dissolution and Separation Bill 2019-2020 fell due to dissolution of Parliament in November 2019. In the Queen’s Speech in December 2019, the government confirmed plans to bring the bill back. It has its second reading in the HOL and now has moved to the committee stage. If enacted the bill will see extensive reform to the law of divorce with the introduction of no-fault divorce. The bill removes the requirement to provide evidence of fault or separation and replaces it with a notification process where a statement of irretrievable break down is provided. Research by Liz Trinder for the Nuffield Foundation shows that any reform would be consistent with international trends.

In conclusion, the present law on divorce is in a strange state. The law can be said to be unsatisfactory. According to Eeeklar, we may become uncomfortable when the government intervenes in the process of marriage and divorce and tries to impose its own vision of how people should be behaving. It can seem to be heavy handed, domineering and insensitive. There are many who still support the institution of marriage and believe that vows are to be taken seriously and obeyed for the rest of their marriage. According to Sir Edward Leigh, society needs to be judgemental of parents who do not stay together. Sir Paul Coleridge has created the Marriage Foundation which is a group that argues that divorce and relationship break down is associated with harmful effects on society. Divorce and relationship break down can cause harms but whether they are worse than unhappy couples staying together is up for debate. For some divorce can be a tragedy and for others, the start of something new.