Family Law Act 1996

The Family Law Act 1996 was envisioned to modernise the divorce process and is seen as one of the most radical and far-reaching reforms of family law in the past century^[1]. It was passed by Parliament in 1996 but, because of the drastic changes it would bring about at the time it was not predicted to come into effect until 1999 or 2000^[2]. The purpose of the Act was to meet the twin goals of saving marriages and endorsing a peace-making approach to divorce if it was the only option^[3]. It marked a momentous shift in divorce legislation, acknowledging divorce as a procedure rather than a concrete event^[4].

In the wake of the increase of divorce, concern had grown that saveable marriages were being terminated by a divorce, effectively too easily^[5], at the same time this area of law surrounded further critique, especially in relation to its continued reliance on fault and the hostility it generates between the parties involved. As a result, the Law Commission put forward proposals for reform. It submitted that while irretrievable breakdown should remain the sole ground for divorce, it should be established by a period of time rather than the need to prove specific facts^[6].  The main purpose was the encouragement of mediation, after a statement of marital breakdown there was to be an eleven month period of reflection and consideration, mediation would allow parties to eliminate allegations of fault and reduce hostility and further resolve their issues for example child care and settlements of a monetary nature before legal intervention^[7].

Part 1 of the Act set out general principles^[8], Part 3 mediation and legal aid^[9] whilst Part 4 covered domestic violence^[10]. However, when the Bill was introduced into Parliament it had already departed from a number of recommendations made by the Law Commission; it envisaged a greater role for mediation^[11], the stance was taken that divorce should not be granted if parties failed to make arrangements for the future, this created tension in Parliament as the new Act merely blurred the original aims and was far from the Commission’s simple scheme^[12].

Implementation of the main provisions were therefore delayed in order to carry out pilot schemes to ensure the most effective way of carrying out information meetings and mediation would go ahead^[13].  The results were unsatisfactory which of course meant the provisions of the Act particularly Part 2 would not be implemented because they did not ‘meet Government objectives of saving marriage or helping divorcing couples to resolve problems with a minimum of acrimony^[14]’.  Helen Reece noted that the reason behind the failure of implementing this Act was because the ‘disappointing results of the pilot schemes was untenable, pointing out that since the purpose of providing information is to inform, the success of such schemes should be assessed by the extent to which attendees found the information useful rather than what they did after the meetings^[15]’.  Nigel Shepard gave a simple justification for the failure in that people are just not as interested in the formalities of their relationship as had been thought; they seek the quickest way out of a bad relationship and carry on regardless^[16].  This attempt of reform can be further criticised for presenting an idealised version of the family and divorce^[17].

One of the key changes that would have been made to the law are highlighted in Part 2 of the Act, which would have introduced a ‘no-fault’ divorce^[18].  Hasson, interviewing key policy makers found that ‘the vast majority of study participants strongly favoured the introduction of a no-fault framework^[19].’  The main problem with a fault based divorce law is that it creates hostility between the parties, this can be evidenced by Wright who confirmed that ‘where the evidence for irretrievable breakdown of the marriage had been supported by facts relating to the respondent’s behaviour, this did appear, in some cases, to lead to an increase in hostility^[20].’  In turn, there has been much objection surrounding the implementation of a no-fault divorce, most scholars reach the same conclusion being that the failure to recognise fault on behalf of one party or another does rankle, in some marriages there is clearly fault, it would create further confusion if this could not be referred too; there is no other area of law where such attempts are made to ignore causation and blame^[21].

As mentioned above, mediation was a seminal part of the above attempt of reform, and has been encouraged by governments for over twenty years, as this is frequently associated with no-fault divorce, one may argue that there should be further attempt to introduce mediation as Walker highlighted ‘mediation is perceived as supportive, facilitative, non-conflictual: everything that is inherently good in a dispute resolution process^[22]’, but in reality mediation would generate hostility and would stem towards the Government trying to ‘molly-cuddle’ marital breakdowns in the unlikely hope of reconciliation.  Walker appears to favour a no-fault divorce when he stated ‘if the divorce law cannot save marriages, it must concentrate on its other objectives, to dissolve marriages as painlessly and with as few negative consequences as possible^[23].’  As Vinney voices the implementation of a no-fault based divorce would no doubt minimise the risk of bitterness, distress and humiliation^[24].

Part 2 of the Act was similar to that of the United States of America’s divorce procedure, they have adopted a ‘no-fault’ based system; it is often enough to simply state that the parties cannot get along anymore^[25].  The norm in America is that adultery and other marital misbehaviour is no longer punished by the law of divorce, indeed, the concept of fault has been banished^[26].  The ground for divorce remains as irretrievable breakdown however, courts will grant a divorce simply when one or both spouses allege that their marriage has irretrievably broken down by irreconcilable difference^[27].  In turn, some States do offer a fault and no-fault based divorce system for example Alabama, couples who do not want to observe the waiting period are eligible to file for divorce based on fault; one may suggest that this would only complicate matters further and deny the innocent party from any sort of remedy, for example having their say.  This can be supported by the opinion of Sclater; ‘for many, the notion of fault of attributing blame to one party and exoneration the other, is what the legal system should be about, it is what ensures that justice is not only done but seen to be done^[28].’  Bainham argues that ‘the spotlight in England has been very much on divorce but if we look at wider issues of family law it quickly becomes apparent that fault continues to play a significant, albeit declining part in legal outcomes across the whole spectrum of family disputes^[29],’ it would be unjust to remove the ‘fault based’ system because fault can always be distributed in a divorce, you simply do not just fall out of love with your partner, a marriage involves so much emotion and investment.  An interesting point is that almost 50% of marriages in America end up divorced^[30]; therefore this strongly questions the workability of such a system.

Bibliography

Legislation

• Family Law Act 1996

Articles/Website Articles/Books/Reports

• Alison Diduck, ‘Law’s Families’, (Butterworth, 2003), Chapter 3: Divorce Experiences

• Andrew Bainham, ‘Men and Women Behaving Badly: Is Fault Dead in English Family Law?’, (2001) Oxford Journal of Legal StudiesVolume 21 No. 2

• Department of State for the United States of America Office Website, ‘FLO: Divorce and the Foreign Service’ < http://www.state.gov/documents/organization/156843.pdf > Last Assessed: 17/02/2016

• Ezra Hasson, ‘Setting a Standard or Reflecting Reality? The ‘Role’ of Divorce Law and the Case of the Family Law Act 1996’, (2003) International Journal of Law, Policy and the Family

• Ezra Hasson, ‘Wedded to ‘Fault’: The Legal Regulation of Divorce and Relationship Breakdown’, (2006) Legal Studies Volume 2

• Family Justice Review, (November 2011), ‘Family Justice Review: Final Report’  < https://www.gov.uk/government/publications/family-justice-review-final-report > Last accessed: 16/01/2016

• Helen Reece, ‘Divorcing Responsibilities’, (Hart Publishing, 2003)

• Herbert Jacob, ‘Silent Revolution, The Transformation of Divorce Law in the United States’,(The University of Chicago, 1988)

• House of Commons, ‘House of Commons Debate on 4 April 2000 – Family Law Act 1996’ < http://hansard.millbanksystems.com/commons/2000/apr/04/family-law-act-1996 > Last Accessed: 17/02/2016

• Janet Walker, ‘Divorce – Whose Fault? Is the Law Commission Getting it Right?’ (1991) Family Law Review 234

• Jonathan Herring, Rebecca Probert & Stephen Gilmore, ‘Great Debates: Family Law’, (Palgrave Macmillan 2010), Chapter 8: Divorce

• Joshua Vinney, ‘The Modern Divorce’, (2011) < http://etheses.dur.ac.uk/3405 > Last Assessed: 16/02/2016

• Katherine Wright, ‘The Divorce Process: A View from the Other Side of the Desk’,  (2006) Child and Family Law Quarterly Review 93

• Law Commission, (1990), ‘Ground for Divorce’, Law Commission Report No.192

• Lord Chancellor’s Department, ‘Looking to the Future: Mediation and the Ground for Divorce’, White Paper H.M. Government (HMSO, 1995), Chapter 5: Family Mediation

• Lynn Wardle, ‘Divorce Reform at the Turn of the Millennium: Certainties andPossibilities’, (2000) Family Law Review 33

• Mavis Maclean, ‘Family mediation – alternative or additional dispute resolution’, (2010) Journal of Social Welfare and Family Law 32(2)

• The Official Census Website, ‘Remarriage in the United States’ < https://www.census.gov/content/dam/Census/library/publications/2015/acs/acs-30.pdf > Last Assessed: 17/02/2016