#1778 - Divorce - Family Law

Divorce

What aims should Divorce Law have?

• To support the institution of marriage

  • As per S.1(1)(a) FLA 1996

    • Herring:

      • Divorce is a tragedy for the couple and for the state – loses about 5p per 1 of income tax

      • Can also be said to shake social stability by challenging the image of the family as comforting, secure and enduring

  • Does divorce law affect the divorce rate?

    • Deech:

      • Every successive attempt to bring statute law into line with reality causes an increase in the divorce rate owing to greater familiarity with divorce as a solution to marital problems

      • With greater willingness to use it, there is a resultant pressure on the family courts, so leading to a relaxation

        • And then another call for a change in the law in order to bring it “into line” with reality..

    • Mansfield, Reynolds, Arai (1999): Divorce rates haven’t increased that much when law has been changed

      • Legislation might be a response to divorce stats rather than the cause of them

    • Herring: obviously divorce law linked to divorce rate

      • If we did not allow divorce in law, then divorce rate becomes nil – although no guarantee that people would stay together

      • However, perception that divorce is difficult might delay the parties from seeking it until they really feel they have a case

        • Perhaps divorce rate could be lowered by making marriage harder? E.g. increase minimum age – stats show that younger brides more likely to divorce than older ones.

• To save marriage if possible

  • As stated by FLA 1996 s.1(1)(b) – legal proceedings should persuade parties to be reconciled and not to turn back from divorce

  • BUT Hassan (2004): People do not consult a lawyer when their marriage is one the rocks, but when it is irreparable

    • Walker and McCarthy (2004): some marriages should not be saved – e.g. those involving domestic violence or is harming children

      • Some appalling marriages found two years after when couples persuaded from divorce having started the process.

• Avoid exacerbating bitterness of the process

  • As stated by s.1(1)(c)(i)

  • Divorce is a hellish procedure for most couples where there is a dispute

    • It is questionable to what extent a couple with a dispute will not be bitter – court does not often lay blame clearly at one party or the other

• Promote a continuing relationship between the spouses, particularly where children

  • As stated by s.1(1)(c)(ii)

  • Beck and Beck-Gernsheim: Only someone equating marriage with sex and living together would make the mistake that divorce is the end of marriage

    • It one concentrates on problems of material support, on children, and on a long common biography,

      • Then divorce is not even the legal end of marriage, but a post-divorce “separation marriage”

• Should not lead to unnecessary expenditure for the state or the parties

  • At started by s.1(1)(c)(iii)

  • But what is “unnecessary”?

    • One partner may want lawyers to dispute everything that the other partner says, down to the smallest fact

    • Lawyers are expensive, but only because the parties often misuse their time to negotiate about matters which aren’t worth the money involved

• Law should help sort out the emotional turmoil of the parties

  • Richards:

Any family lawyer can provide numerous examples of what has to be regarded as typical behaviour:

• He broke into her house and tipped rubbish into her bed where she now sleeps with her new partner

• She went through the family photographs cutting him out of each one

• He slashed her tyres etc.

• This is emphasised by the parties being given an arena to bring their irrationality and validated by professionals who get drawn in

  • Until we sort out feelings of the participants at divorce, we can’t expect them to make sensible decisions about the long term interests of their children

• Herring: Questionable whether legal process can do this – probs best to try and co-ordinate other services though

  • Particular concern re: children – Dunn (2001): only had been talked to about the separation, only 5% felt they had got a full explanation and could ask questions.

The present law on divorce: The Matrimonial Causes Act 1973

The Special Procedure

• Prior to 1973, each divorce would have to be presented in open court in a hearing

  • This was embarrassing and stressful for the parties

  • And involved a great heat-sink on judicial resources as well as being very expensive

• In 1977, a special procedure was introduced where the divorce is undefended

  • The petitioner simply needs to lodge some documents outlining the grounds for divorce and swearing that the facts stated are true

    • If no-one defends it, the district judge reads the documents and then if satisfied, declares a decree nisi

• This works on the assumption that if no-one turns up to defend the divorce, the facts contained must be true

  • Herring: this is a false assumption;

    • If a defendant receives a document full of falsehoods, he needs to decide whether to defend it

      • He’ll have trouble finding a lawyer

      • And it will be very expensive to do so

      • And even where they do defend, few defences are successful, thus increasing the bitterness between the parties

Divorce Procedure:

• First you get the decree nisi

• After 6 weeks, the decree absolute can be petitioned for

  • If the petitioner fails to do so, then the respondent can petition after three months instead.

The ONE GROUND (singular) for Divorce:

• S.1(1): MCA 1973: The marriage has irretrievably broken down

• S.1(2) This must be proved by one of five facts:

  • (a) R’s adultery

    • R must have committed adultery and P finds its intolerable to live with R

      • P cannot rely on their own adultery

      • Not enough just that R committed adultery – must also show that intolerable to live with (but only for this P, not for a reasonable P)

        • (s.2(1) = if R and P live together for 6 months after act of adultery, can’t rely on this act)

      • Cleary v Cleary – no need to show that adultery is reason why P cannot live with R

    • Herring: adultery a symptom of breakdown, but not in itself indicating that marriage broken down

      • Must be an act of sexual intercourse with someone of opposite sex

        • Other sex acts or homosexual acts not adultery, but likely unreasonable behaviour

  • (b) R’s unreasonable behaviour

    • R has behaved in such a way that P cannot reasonably be expected to live with R

      • Not just enough to have unreasonable behaviour – behaviour must be such that right thinking person think that P cannot be reasonably be expected to live with R

        • Birch v Birch – court takes account of personality of P, but P being unreasonable means that not proved fact

    • While behaviour must be unreasonable, neither party need be blameworthy

      • So H’s illness causing him to act unreasonably is still “unreasonable behaviour” as not need to show fault

      • Courts are reluctant to conclude that an omission to act is unreasonable behaviour, but this is not impossible – just needs more proof

      • If they have lived together for six months after unreasonable behaviour, then court must take this into account

        • But this is by no means fatal to the claim (e.g. Bradley – no alternative accommodation)

        • And if less than 6 months, court cannot take this into account -

          • don’t want to put off reconciliation by making divorce difficult if stay for short time.

  • (c) R’s desertion

    • R has deserted P for a continuous period of at least two years before presenting petition

      • This is an unjustified withdrawal from cohabitation without the consent of the remaining spouse

        • And with the intent of being separated permanently

  • (d) 2 years separation with R’s consent to the divorce

    • The parties have lived apart for a continuous period of two years and R consents to the decree being granted

      • This means that divorce law has accepted divorce can be obtained by consent w/o proof of wrongdoing

      • This is the ground used in 25% of cases – it was thought it would be the dominant ground

  • (e) 5 years separation

    • That the parties have lived apart for a continuous period of 5 years

      • This can be granted without R’s consent and without proof of wrongdoing.

Problems with the current law (Or Law Com Report 192’s take on why current law is rubbish)

• The divorce law is confusing and misleading

  • Irretrievable Breakdown is not enough

    • The confusion is based on the fact that irretrievable breakdown is said to be the only ground of divorce

      • But actually you need to prove more than irretrievable breakdown – also have to show one of five facts

    • Mears: but this is okay, because lawyers can explain the law

    • Herring: That’s all very well, but this is no excuse for unclear law

  • Theory is different from practice

    • Cretney: theory of law seems to imply that state has a vital interest in divorce,

      • and it should only allow it where the marriage can be demonstrated to irretrievably have broken down

      • BUT real situation is that divorce can be quite quick if both parties agree

        • And even if one is reluctant, they will usually accept the inevitable when presented with a petition from the other party saying that it’s over.

• It is discriminatory and unjust

  • Two years separation is not readily available

    • People may be too poor to afford alternative accommodation, and must wait for five years or use a fault based ground

      • Mears: unfair criticism as only discrimination is against people without true grounds for divorce

      • Herring: validity of Mears’ argument depends on whether need for separation is well founded or not.

  • Fault based reasons don’t necessarily reflect who is really responsible for the marital breakdown

    • Fact that one person has committed adultery might...