The current law on divorce is problematic and in desperate need of reform. This essay will explore the law on divorce and seek to suggest potential reforms. One reform is adopting a no fault system so that resentment is reduced between spouses who are divorcing. Divorces can have significant impacts to children involved, the Office for National Statistics in 2015 recorded ‘94,864 children aged u16 who were in families where the parents divorced in 2013’. Herring suggests the statistics are “alarming to many” and “…high divorce rates suggest significant levels of personal unhappiness for the adults and children involved”. Further, Lampard in a recent study suggests “…a relationship becomes unhappy and then triggers events such as violence and adultery which causes the official break up”. The Marriage Foundation in 2014 released its budget for the cost of family breakdown which was at ‘£46 billion’. Yet again, there are detrimental implications of divorce such as huge costs for the state; the law on divorce therefore must be reformed. Herring further indicates that “delaying visits to a solicitor or the institution of legal proceedings may potentially reduce divorce rates”, another reform, perhaps if the government truly wanted to discourage divorce may be “more effective by making marriage rather than divorce harder.” Arguably, requiring parties to have a year of reflection and consideration before being permitted to marry is one reform. Another reform is increasing the age for when you can marry to reduce the divorce rates. These are all potential reforms which may reduce the divorce rates.
Divorce is an extremely personal matter for individuals. Many academics have argued that the law should not attempt to ensure there is no resentment between parties post-divorce. It is not an objective of the law to do this. Herring asserts “to expect a legal system to enable the parties to separate happily and then have a good post-divorce relationship is pure idealism”. The law cannot eradicate all problems or guarantee happy relationships post-divorce. Nevertheless, the contradiction to this is through the Family Law Act 1996 s1(b) which states ‘the parties to a marriage which may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage’. Particularly when children are involved some academics suggest the law should attempt to reconcile spouses. Dunn and Deckard suggest, “There is particular concern with the lack of support children receive when their parents separate.” Historically, divorce law in 1966 where a group formed by the Arch Bishop of Canterbury produced leading documents in favour of liberating the law. It was ‘huge development for when the Church of England accepted the need for a liberalisation of divorce law’ which indicates the attitudes of divorce in society changing. This led to the Divorce Reform Act 1969 which was a step forward for divorce law. In Pheasant v Pheasant the court held against a divorce where a husband petitioned as his wife did not display spontaneous displays of emotion. The court held this did not breach any marital breakdown requirements. Contrastingly, in Hadjimilitis v Tsavliris the marriage suffered an irretrievable breakdown as the husband caused the wife depression. So, what is evident is how complexed divorces are especially since not all divorces are the same. Spouses may be divorcing for various reasons so the law on divorce should be reformed so that it can accommodate to case by case divorces.
The Law Commission Report in 1990 criticised the Matrimonial Causes Act 1973 and suggested some potential reforms to improve the law on divorce. The Matrimonial Causes Act is viewed as confusing, Herring indicates the ‘confusion is from the fact although irretrievable breakdown is the sole ground for all divorces, when in fact one of the five must also be proved’. Sir James Munby states, “The reality is we have had divorce by consent for 30 years” however that is not what the law suggests which adds to the confusion. The Law Commission illustrated why the Matrimonial Causes Act is unjust. In particular, the ground for 2 years of separation is not available for those who cannot afford to live separately. Instead they have to wait for 5 years or use one of the fault-based grounds. This further shows the complexity of the law on divorce and its fundamental issues. However, Martin Mears disagrees and asserts this is ‘unfair criticism because it is only discrimination against those who are unable to prove a ground for divorce.’ Nevertheless, Mears’s disagreement is valid only when there is a sufficient reason for divorcing. Another key issue of the Matrimonial Causes Act is that to a degree it instigates bitterness and resentment for spouses. Herring argues, ‘the system encourages fault based grounds because they are quicker to use’. Allegations between spouses during a divorce are published in public documents, typically the process for lawyers is to ask partners to list all mistakes during the marriage which has caused the marriage breakdown and then this is sent to the other party, which eradicates all hope of reconciliation.
In contrast, some critics argue divorce is a sensitive area whereby it is inevitable for hostility and bitterness to be caused. So, reforms will not be able to govern the feelings of divorced individuals so it should not attempt to do so. Another crucial issue with the Matrimonial Causes Act is that it does nothing in reality to save marriages, the blame-game is encouraged instead between spouses. Nonetheless, s6(1) of Matrimonial Causes Act states ‘Provision shall be made by rules of court for requiring the legal representative acting for a petitioner for divorce to certify whether he has discussed with the petitioner the possibility of a reconciliation and given him the names and addresses of persons qualified to help effect a reconciliation between parties to a marriage who have become estranged.’ Arguably, this conveys the Matrimonial Causes Act attempting to reconcile spouses by a professional addressing the matter of potential reconciliation as a requirement of the law. Yet, as Herring asserts the provisions are of “little use to those who do not instruct a solicitor”. Finally, another key issue with the Matrimonial Causes Act is children are most vulnerable during a divorce. The blame-game between spouses does not reduce conflict which may be detrimental to children. The law should attempt to protect children who are vulnerable during a divorce.
The current Matrimonial Causes Act governs divorces. The Family Law Act 1996 later aimed to reform the law around divorce from the Matrimonial Causes Act, but failed. Prior to enacting the Family Law Act, ‘pilot studies were used to test the new programmes for the divorce procedure, the government was disappointed and decided not to implement.’ Marriage has changed, it has become socially more acceptable for couples to breakdown and seek a divorce. Marriage is no longer required or seen in society as a necessity for a relationship. There is a belief that the law should attempt to encourage parties to remain married. Under the Matrimonial Causes Act there is arguably only one ground which enables a marriage breakdown and that is a requirement for when a marriage has broken down irretrievably. There are five examples listed under s1(2) of the Matrimonial Causes Act for this to be satisfied. These examples are listed below,
(a)that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d)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;
(e)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”). If one of the five examples is satisfied, a couple may subsequently breakdown by divorce. Nonetheless, realistically couples are reluctant to seek legal representation for divorce proceedings due to the high costs. Further, the time periods listed in s1(2) in the final three requirements causes significant delay until divorce proceedings take place. Therefore, a fast divorce is arguably not available. However, it can be argued if the first two requirements are used as evidence for a breakdown of a marriage then a quick divorce is effective. Therefore, quick divorce is available for parties as parties are able to use requirements for which do not involve set time periods to seek a divorce. The Family Law Act attempted to protect marriages by introducing a three month gap for an information meeting which enables partners to reconsider their marriage and to provide ultimately a statement indicating a definitive marriage breakdown. Walker suggests the ‘Government’s decision to abandon implementation of Family Law Act 1996 was largely caused by lack of satisfaction with information meetings’. Yet, the information meetings arguably could be positive for parties as they would have a chance to discuss the breakdown in a civil manner which would perhaps reduce hostility. Rather than enforcing a divorce the meeting would allow the parties to agree to a divorce. By the parties meeting up for an information meeting, it allows for a divorce to be personal which to some degree submits that the law attempted to reduce bitterness. Ultimately, information meetings were unsuccessful as they did not tailor sufficiently to various divorce contexts. Walker asserts “information meetings were too structured, impersonal and routine” therefore the government abandoned the Family Law Act which conveys the reform was unsuccessful. Further, Arnold asserts, “no two divorces are the same, same systems cannot work for all divorcing matters”. The information meetings were unsuccessful in being accommodating for individual divorce cases which can vary in the reasoning for divorce. Lastly, Walker suggests typically “only the spouse who wanted the divorce attended these information meetings so they were ineffective for reconciliation” Therefore, the Family Law Act was not effective and is in desperate need of reform.
In contrast, Sarah Evans suggests divorce laws are ‘predominantly based on blame’. Divorce law tries to govern typically a highly volatile period for spouses. s1(b) Matrimonial Causes Act particularly has been criticised for its ‘unreasonable behaviour’ requirement which is difficult to prove when a spouse is not being truthful. However, a divorce can also be straightforward, for example, if a husband is to commit adultery and the wife proceeds with a divorce due to the legitimate wrongdoings, the courts will rightfully grant a divorce creating a ‘decree nisi’ which six weeks after entitles you to apply for a ‘decree absolute’. Thereafter, a marriage legally ends which means spouses are not tied by the law. The complexity of divorces specifically concerns partners who do not agree to the terms for a divorce with each other, which increases bitterness and usually creates hostility. It is argued that s1(b) Matrimonial Causes Act, the ‘unreasonable behaviour’ ground encourages a blame game between spouses. This type of blame game between spouses may be detrimental to children in the family which is concerning for the law. Divorces can be hugely detrimental to an individuals mental and physical health. It is a time of distress and emotional pain. s1(c)(i) of the Family Law Act recognised that divorce law should function with ‘minimum distress to the parties’. Herring suggests the current law does not aim to ‘remove’ the hostility of a divorcing couple, it only tries not to ‘exacerbate’ the hostility. It can however be argued that resentment in divorce is inevitable, therefore the law will never be able to remove this and should not attempt to do so. Legal aid is not available for petitioned divorces and the high costs of divorces remain problematic which is a key issue of the current divorce law.
Alternatively, the current president of the Supreme Court Lady Hale of Richmond proposed a new idea of a ‘no fault’ divorce as a potential reform. Lady Hale told the Evening Standard “you would make a declaration that your marriage had irretrievably broken down and if you were still of that view a year later, then you get your divorce… That’s that”. In the one year period, the couple will have the year to ensure a divorce is truly what they wish for which would hopefully encourage a more civil and amicable nature between the spouses. The ‘no fault’ ground would perhaps reduce resentment between divorced partners as in contrast to the ‘unreasonable behaviour’ objective of s1(b) Matrimonial Causes Act instigating couples to blame each other on the mistakes for their divorce which only creates hostility. Yet, the Family Law Bar Association described the law as “hopelessly complex and procedurally tortuous”. Sir James Munby current president of the Family Division of the High Court asserted at a news conference that officially introducing a ‘no fault’ would “bring some intellectual honesty to the system”. A ‘no fault’ divorce attempts to reduce the blame game for spouses which normally causes bitterness. In Miller v Miller Smith, Wilson LJ states “our society in England and Wales now urgently demands a second attempt by Parliament, better than in the ill-fated Part II of the Act of 1996, to reform the five ancient bases of divorce”. Ultimately, one potential reform to divorce law is a ‘no fault’ policy which will encourage civil behaviour for an emotional and volatile situation between spouses.
Moreover, another example of a reform was announced in 2015 by Justice Minister, Simon Hughes MP who indicated potential changes to simplify communication for children in court proceedings. One way was by improving facilities for children to communicate with a judge in letters or pictures to provide evidence in court which can be crucial to a divorce proceeding. Another example is Cafcass who are working on vast project to assist children with a Court Gaming App which will assist children with an understanding of a court system. The Guardian submitted ‘while most family lawyers favour no-fault divorce in principle’ the Family Law Act was already too complexed and criticised so a ‘no fault’ idea was not strong enough to become official. Thus, the Government refrained from including a no fault divorce for England and Wales. It was further suggested the government may not be ‘opposed to no fault divorce but has no great attachment to the act’. The ‘compulsory information meetings which were too part of a no fault requirement by the act for a divorce were criticised. The cost for purely the research for the effectiveness of compulsory information meetings was at a cost of one million pounds which is extortionate’. Divorce law must be reformed, currently, the law ignites a blame game between spouses which increases bitterness.
Another problem of divorce law is if a party does not want to divorce quickly they can simply use a ground of no fault. Yet, the current law requires individuals to wait for a period of time if they are not able to prove a fault ground for divorce. The grounds of no fault for divorce are unreasonable. Divorce is a very complexed matter, one key issue of parties not telling the truth simply to achieve a fast divorce is a focal issue of the current law. This is a significant issue which leads to hostility between parties who may feel like the ex partner is falsifying evidence. The law is therefore problematic and should be amended to prevent this issue. The speed of fault grounds should remain in attempt to hinder hostility between partners who are going through a divorce. Arguably, some academics have indicated that divorce inevitably causes resentment and hostility and the law should not try to resolve this. Hasson asserts “marital breakdown is a fact of life to be dealt with, rather than something to be corrected or discouraged”. Divorce is a personal matter and the law can only have effect to an extent on partners who are going through a divorce, no more and no less. The difficulty for the law in distinguishing whether an individual is guilty of a fault in the marriage and for one who is simply falsifying a fault to satisfy a quick divorce is problematic. Not just is this scenario difficult for the law but also spouses going through the divorce, as if a partner is falsifying evidence it can cause huge resentment.
Most importantly, divorces are sensitive and also concern children. Typically people that are married going through a divorce are often parents too. Children are minors who require utmost time, care and love. The hostility which is caused from a divorce can have a detrimental impact on children. The law on divorce has been scrutinised for its failure to provide sufficient protection for children. The current law which involves children for divorcing spouses is the Children Act 1989. The current Office for National Statistics recorded ‘101,055 divorces of opposite sex couples in 2015’ which is a staggering figure. An issue for the law on divorce is when parents feel their right to decide what is best for their children gets taken away due to the divorce. The current divorce law is therefore problematic as it is difficult to distinguish when a parent is to be trusted in making decisions for their children and when they are not. Simply a divorce should not remove all rights spouses possess as parents of their children. This area of divorce is in desperate need for reform. Walker asserts with regard to issues of the Family Law Act protecting children, parents “found it difficult to bridge the gap between knowing what to do to help their children and actually doing it”. There has been some reform with the Children and Families Act 2014 being introduced. Arguably, this amended and provided clarity for when divorcees may see their children which ultimately does protect children.
To conclude, divorce law currently does not address the needs of children which are detrimentally impacted by a marriage breakdown. Reform of the law is necessary, despite the grounds of fault which are sought for a divorce providing a fast divorce for couples. The law is overly complicated and is in desperate need for reform. The law creates and instigates a blame game between spouses which causes bitterness and resentment. What the most effective reform is not necessarily something that has been discovered but needless to suggest the current law on divorce is far too complexed.