Issues in UK Divorce Laws

Introduction

Per
Dave Meure, a great marriage is not when the ‘perfect couple’ comes together.
It is when an imperfect couple learns to enjoy their differences.[1]
Lord Penzance gave a definition of marriage as the voluntary union for life of
a man and a woman. [2]
Over the years, many cases had shown that marriages might not be regarded as
being for life, the reason why is because many marriages end in divorce. In general,
divorce happens always come with reasons such as lack of communication, feeling
constrained, insecurity, differences of culture and religious or abuse which
one or both of spouse feeling unbearable and couldn’t move forward hand in
hand. However, it is obvious that a result of divorce raised a lot of negative
impact not just for the parties, the children of the family will be the most
innocent victim. As many research showed, children of divorce are more likely
to create a lot of social problems to the society which might affect the
country such as poverty, educational failure, marital discord and others.[3] Even
though divorce is not encouraged over the world, but the law gives the rights
for the couples to end their marriage by way of divorce.

The current UK law on divorce was introduced from the 20^th century until today with a little change which was governed by Matrimonial Causes Act 1973 (MCA 1973). Although there is an attempt to overturn the 1973 Act in 1996, but it hasn’t been implemented. Over the years, the law on divorce remains the area where criticisms remain appear, but no reformation is being made. Thus, this essay will mainly focus on whether it’s necessarily to reform the English divorce laws, to improve and manage how divorces are petitioned and carried.

Current Law on Divorce

Divorce was first introduced in the middle of the 19^th century[4] with a meaning of legal dissolution of adult relationships by courts which terminate a marital union and revoke the legal duties and responsibilities of marriage. The current statute which governing the law of divorce is MCA 1973, stating that the only ground of divorce is when the marriage is irretrievable breakdown with an evidence of at least one of the five facts listed in s1(2), namely; adultery, unreasonable behaviour, desertion, 2 years’ separation with consent and 5 years’ separation.[5] It is essential to prove one of the 5 facts to obtain a divorce. It was showed in Richards, if none of the 5 facts are satisfied, even the court agreed that marriage had broken down irretrievably, but a decree wouldn’t be granted.[6] However, S3(1) provides an absolute one-year bar which a petition for divorce can only be presented after one-year period of marriage.[7] UK’s divorce law originally appears to be non-fault based, as an irretrievable breakdown of marriage is the only ground for divorce, but 3 of the five facts used to establish the breakdown are based on fault: adultery, unreasonable behaviour and desertion, while others are remaining as non-fault based.[8]

Adultery

S1(2)(a)
requires petition based on adultery must establish that the respondent has
committed adultery and the petition finds it intolerable to live with the
respondent.[9]
Thus, 2 elements: adultery and intolerability must be established to terminate
the marriage. Even though the term ‘adultery’ is not defined in statute but
gave a guideline that it must only be a conduct between the respondent and an
opposite sex[10],
however common law gave an interpretation as voluntary intercourse between 2
persons of the opposite sex of whom one or both are married but who are not
married to each other.[11]
Although there is a second requirement of intolerability need to be established.
The courts in very rare case question the intolerability because the aim of
this requirement is to buttress the stability of marriage, so that adultery on
its own wouldn’t be sufficient to terminate a marriage.[12] In
addition, s2(1) gives a complete bar to present a petition if the
parties live together exceed 6 months after the discovery of adultery.[13]

Unreasonable Behaviour

The
second fact that marriage had broken down irretrievably is when the respondent
had behaved in such a way that the petitioner cannot reasonably be expected to
live with him as stated in s1(2)(b).[14]
Behaviour covers a wide range of conduct from not engaging in married life to
violence.[15]
For examples: wife was required to tickle husband’s feet for hours[16],
wife’s associate another man[17]
and violence of the husband[18].
A test was set out in Livingstone-Stallard to
applied in unreasonable behaviour, Dunn J suggested that would any reasonable
person would think that this husband has behaved in such a way that wife cannot
reasonably be expected to live with him, considering the character and
personalities of the parties.[19]
This test is a combination of subjective and objective test. In Katz,
behaviour must be a conduct including an act or omission, but not just a state
of mind.[20]
It can be an act or a series of minor incidents as stated in Stevens.[21]
However, when cases involving illness, Rees J held that the court must take
into account including the disabilities and temperaments of both parties, the
causes of the behaviour and whether the petitioner has knowledge of such
causes, the intention, the impact on the petitioner and the family unit,
duration, and the prospects of cure or improvement in the future.[22]

Desertion

By
establishing desertion which is the third fact mentioned above, S1(2)(c)
provides that one spouse abandoned the other and leaves the household for continuous
period of at least 2 years with the intention of not returning.[23] Quoraishi
gave a definition on desertion as consisting of an unjustifiable withdrawal
from cohabitation of one spouse without the consent of the other and with the
intention of remaining permanently apart.[24] To
establish desertion under this section, 4 elements need to be proved: physical
separation, intention to desert, no consent by the petitioner to desert and no
good reason for the respondent to leave.[25]
First element requires the parties must be physical separated which is obvious
that one party leaves the family home. However, desertion may occur where there
is a total cessation of cohabitation between the parties, even though they
remain living under the same roof.[26]
Lord Denning commented that if a husband shut himself up in a room and no
longer have any relation with his wife, is an evidence of living apart.[27] Second
element requires there is a communicated intention to live separate permanently,
not simply absent for any other reason such as work commitments, holiday or
imprisonment which also showed in Beeken[28].
Followingly, third element requires the innocent spouse give no consent to the
desertion. The final element provides that there must be no justification for
the respondent to leave the family home.

2 years’ separation with consent

A
divorce can be granted based on continuous period of at least 2 years’
separation with the respondent’s consent to divorce.[29] A
petitioner who relies under this section must show that the parties have been
living apart for 2 years as well as the respondent’s consent to divorce before
a decree will be granted. A positive consent is the fundamental requirement
laid down in this fact. However, an oral consent is insufficient, it usually
given by the respondent signing the acknowledgment of service and can be
withdrawn without reason at any time before the decree nisi is granted.[30] S2(6)
gives the guideline of separation as the parties are treated as living apart
unless living with each other in the same household.[31]

5 years’ separation

A
divorce can be granted based on continuous period of 5 years’ separation was
introduced in s1(2)(e).[32] Different
with the 2 years’ separation, this fact doesn’t require respondent to show the
consent to divorce. However, separation need to be proved with same definition
as mentioned above. In this situation, it can be seem as a unilateral divorce
because respondent is helpless to prevent such a divorce unless he/she is able
to raise a defence under section 5[33]
that he/she will suffer grave financial or other hardship.[34]

Criticisms of divorce law under MCA 1973

For over the decades, UK remained
stuck in an archaic fault-based system, which requiring the couples to point
fingers and air dirty laundry in order to divorce. The 1973 Act has been
criticised by judges, academics and politicians for many reasons, it appears to
be non-fault based, as an irretrievable breakdown of marriage is the sole
ground for divorce, but three of the five facts used to establish breakdown are
based on fault and almost two-thirds of divorces are granted on these facts. [35]
As a result, the Law Commission published in a discussion paper[36]
in 1988, criticised the law for being confusing and misleading. It further
argued that the law increases bitterness, distress and disgrace because the
quickest way to divorce is to base the petition on the respondent’s adultery or
unreasonable behaviour.[37]

By remonstrated that ‘Occasionally
spouses have made totally bogus claims’ that the false claim may impliedly
encourage where if a couple’s relationship has broken down, the spouses could
produce a list of events or pretend that one of them has committed adultery or
unreasonable behaviour to obtain a quick divorce.[38] At
the meant time, Law Commission criticised the law for being ‘discriminatory and
unjust’ because the facts in practice where only those who are wealthy enough
to maintain 2 properties for the separation period.[39]
Of the spouses cannot afford to do so, they will have to live on the same
property but refuse to speak to another and eat together to ensure that they
are classed as living in the separate household as indicated in the case of Hollens[40].
Following the Marriage (same sex couple) Act 2013, also be argued that
the law of divorce is discriminatory because sexual relations between a person
of the same sex don’t constitute adultery.[41]
Criticisms arose that the law is confusing and misleading because the law tells
spouses that the only ground for divorce is irretrievable breakdown which
doesn’t involve fault. However, one of the 5 facts must be established and 3 of
them do involve fault. Law Commission subsequently commented that law have led
to unfair distortion in the relative bargaining power of the parties. Not only
this, the law also being criticised that it provokes unnecessary hostility and
bitterness because legal process may compound unhappiness and does nothing to
relieve it. Finally, the Law Commission pointed out that 1973 Act did
nothing to save marriages that are capable of being saved and children of
divorce may suffer.[42]
The only provision of the MCA 1973 concerned with
reconciliation in s6(1)[43]
of which requires a solicitor acting on behalf of the petitioner to certify
whether reconciliation has been discussed with the client. Thus, s6
has no impact if the petitioner doesn’t instruct a solicitor.[44]

For those questions raised, the Law
Commission invited different views for how the law might be altered and came
out with a proposal[45]
for the reform of divorce. Followingly, the Lord Chancellor’s Department
according to different suggestions, published a Consultation Paper introduced
their objective as to support the institution of marriage, include practicable
steps to prevent the irretrievable breakdown of marriage, ensure the parties
understand the consequences of divorce before taking decision, minimise the
bitterness and hostility between the parties and reduce the trauma for the
children.[46]
The aim of the reform was to make divorce harder, the Government’s proposals more
concentrated on ‘marriage saving’ rather than ‘marriage ending’.[47]

Therefore, reforms were introduced
and contained in Part I-III of the Family Law Act 1996. However,
the reform of divorce which was due to come into force, but which was never
implemented.

Attempted reformation under Family Law Act 1996

The Family Law Bill incorporated many
of the Law Commission’s suggestions, and the Act received Royal Assent in 1996.
But 5 years later, the Lord Chancellor announced that Part II, which contained
the reform of divorce law, couldn’t come into force and was eventually repealed. The 1996 Act would have retained irretrievable breakdown of
marriage as the sole ground for divorce but would have abolished the 5 facts as
evidence of breakdown, the parties were required to followed and complete a
complex sequence of procedural steps before being able to obtain a divorce. This
law on divorce introduced ‘divorce over a process of time’ which required the
parties to face up to the emotional and practical consequences of divorce.[48]
The main stages in the process involved: attendance at an information meeting;
making a statement of marital breakdown; passing a period of time for
reflection and consideration; and finally, the granting of a divorce order. The
most different between the current law and the new law was that the parties
were required to sort out arrangements ancillary to the divorce before being
able to obtain a divorce.

To begin with, a spouse wishing to
initiate divorce proceedings would have been obliged to attend an information
meeting where information relating to divorce would be given. In addition,
legal representatives were required to provide their clients with details of
qualified mediators and to certify that they have done so.[49] 3
months after the information meeting, either party was required to make a
‘statement of marital breakdown’ declaring that the party was aware of the
purpose of the period of reflection and consideration and wished to make
arrangement for the future. Once the statement had been made, a period for
reflection and consideration would begin to run. The purpose was to give the
parties time to reflect on whether their marriage could be saved, to have an
opportunity to effect a reconciliation, and to consider what arrangement should
be made for the future. During this period, which would have lasted 9 months or
15 months if the couple had children or applied for an extension, mediation
services would have been no requirement to separate during this period, for
those financially better off would be able to separate and negotiate at a
distance; those not able to do so would be forced to live in what might be a
tough atmosphere for many months.[50] After
the period of reflection, the parties could apply for the divorce order if
financial issues and arrangement relating to children had been resolved.[51]

The provision of the FLA 1996 was
tested through various pilot studies conducted throughout the country. The
pilot studies revealed dissatisfaction with the information meeting and
unwillingness to utilise mediation services, as the information meeting failed
to achieve their aims, which were to save marriage and promote mediation.
Because of these findings, the reforms were never introduced, and Part
I & II of the FLA 1996 was eventually repealed. The
system of divorce contained in the MCA 1973 thus remains current
law, but the criticisms remain and have never disappeared.

Recent Criticism and Reform Proposal on Divorce

It was once though that the reforms
made by FLA scheme deserved a round of applause but
disappointingly, all the efforts gone, and again back to the starting point.
However, the criticisms which led to the reforms under FLA remains and become
more radical until today, judges, academics, practitioners and politicians have
continued to voice concerns about the current law. Lady Butler-Sloss in her
speech described obtaining a divorce on the ground of unreasonable behaviour as
a ‘hypocritical charade’, and there was a need to introduce a truly no-fault
divorce.[52]
 

The law of divorce was in ‘a state of
confusion’ because the theory of divorce doesn’t match up with the practical
reality.[53]
In 2013, Crouse pointed out that the cooling-off period requirement serves as a
panacea to protect the children from divorce.[54]
By slowing down the process, the couple with children would work out their
differences and seek to strengthen their marriages instead of filling for
divorce without a chance for reconciliation.[55] Gruber
also commented that the children who grew up in the “easier-divorce” states are
in fact worse off in several ways.[56] If
children are concerned, it is not for the court to slack off. There is an
indication that the court in fact take little concern in the future of the
children of divorce. The custody dispute is left to the parents to sort out
unless there was something intractable on the surface. It is a red button issue
that must be address before it going to a more dangerous situation.

The main criticisms
relate to the fault element, which most divorce is brought on the fault ground,
partly because these grounds enable the marriage to be terminate quickly. According
to the statistics, adultery is the second common marriage killer.[57]
Steve Doughty whom agreed with Lady Hale suggested that the law-making infidelity
a marriage breaker should be struck from the statute book.[58]
The system that allows an unfaithful spouse to be blamed for the collapse of a
marriage is unsatisfactory. Notably, the need to adduce the proof of adultery
requires the parties to recollect the unpleasant incident in fact produce
bitterness, distress and embarrassment. In addition to this, there is a great
emphasis for profession to develop mediation-based approach. It begs a question
that by asking the client to recount of the incident usually in the first
meeting is the way to promote this approach? No, it in fact cause distortion to
the smooth running of a mediatory approach. It explained why a new no-fault
divorce law would take the acrimony out of break-ups.

Over the years, there
are many proposals which demand a second reformation on the law of divorce was
being introduced. Resolution which is a group of specialist family law
solicitors, proposed a straightforward no-fault divorce law where divorce could
be granted where one or both parties provide a statement of marital breakdown
and one or both of them are still of that view after 6 months.[59]

A Proposal of the
Centre for Social Justice introduce a waiting period where parties would have
to give notice of intention to divorce and then wait 3 months before entitled
to apply for divorce.[60]
The aim is to ensure the parties afforded space to reflect, no application for
financial orders could be made during that time. This period would be intended
to help save marriages and allow time for information meetings, attempts at
reconciliation, or for mediation or other out of court dispute resolution
methods to be used.

For the moment,
however, the only response from Parliament has been to tinker with the process
of divorce under MCA 1973, rendering the procedure for undefended
divorces even more bureaucratic and less judicial. As the overture reform under
FLA
1996 showed, any reform of the law is difficult and raises
difficult policy issues. Thus, no reform was being introduced at the moment.

Conclusion

In my opinion, to keep
paces with the times, reformation on the English law of divorce is a must. Even
thought the effort was paid off under FLA 1996 and back to the previous
time, the current law remains problematics and being criticised over the years.
An example was showed by United States law as it allows couples to choose a
model of divorce which is most suitable rather than decorate themselves in
order to fit one of the five facts to petition for divorce.[61] Wilson
L.J commented that a second attempt of reform is urgently demanded to abolish
the 5 facts of divorce.[62] As evidences had shown, people often by hook or by crook to achieve
their speedy divorce purpose by abusing the law which the aims is to buttress
the stability of marriage and family life and to minimise bitterness and
distress for the parties and their children. A statistic showed that majority of the public think that it is better
to divorce rather than to continue an unhappy marriage.[63] Followingly,
where there was a divorce raised, children of the family are the most innocent
victims. Most of the cases showed that the current law did nothing to minimise
the harm the innocent victims might be suffered. Thus, it is evident that the
current law is sitting uncomfortably alongside other aspects of the present
family law.

To conclude the
discussion above, it is obvious that UK lays behind many of European neighbours
on the law of divorce which embody changes in the way society thinks about it.
The main criticisms raised are subject to concern of children of divorce and
the 5 facts of divorce. Firstly, it clearly indicates that there is no
sufficient consideration with regard to the needs of children when a divorce is
raised. Secondly, since many couples desire to have a speedy divorce, must rely
on the fault-based facts which increase bitterness to either parties or their
children. Even though every effort must be taken to demonstrate a new bill of reform
on divorce law, however the aims is clear, but no lights is seen for a bill to
be introduced. Nowadays, the generation gap between 1973 and current is seem to
be very different as people demand speedy divorce when marriage is
irreversible. Therefore, a reformation for divorce law in UK in in need.

[1] Jewell R. Powell, Marriage 101: Building a Life Together by Faith
(Revell 2008) 165

[2] Hyde v Hyde [1866] LR 1
P&D 130

[3] Catherine M Lee, Karen A Bax, ‘Children’s reactions to parental
separation and divorce’, (2000) 5 (4) PCH 217

[4] Stephen Gilmore, Lisa Glennon, Hayes & Williams’ Family Law (5^th
edn, OUP 2016)

[5] Matrimonial Causes Act 1973, s 1

[6] Richards v Richards
[1984] 2 AII ER 807

[7] Matrimonial Causes Act S 3(1)

[8] Michael Freeman, Understanding Family Law (1^st edn,
S&M 2007)

[9] Matrimonial Causes Act s 1(2)(a)

[10] Matrimonial Causes Act s 1(6)

[11] Dennis v Dennis [1955] 2 AII ER 51

[12] Stephen (n 4)

[13] Matrimonial Causes Act s 2(1)

[14] Matrimonial Causes Act s 1(2)(b)

[15] S. Harris-Short, J. Miles, R. George, Family Law Test, Cases, and
Materials (3^rd edn OUP 2015)

[16] Lines v Lines [1969] 75
Wn.2d 489

[17] Wachtel v Wachtel [1973]
Fam 72

[18] Ash v Ash [2007] 3 WLR
194

[19] Livingstone-Stallard v
Livingstone-Stallard [1974] Fam 47

[20] Katz v Katz [1972] 1 WLR
955

[21] Stevens v Stevens [1979]
1 WLR 885

[22] Thurlow v Thurlow [1976]
Fam 32

[23] Matrimonial Causes Act 1973 s 1(2)(c)

[24] Quoraishi v Quoraishi
[1985] FLR 780

[25] Stephen (n4)

[26] ibid

[27] Hopes v Hopes [1949] P
227

[28] Beeken v Beeken [1948] P
302

[29] Matrimonial Causes Act 1973 s 1(2)(d)

[30] B. Hale, D. Pearl, E. Cooke, D. Monk, The Family, Law & Society
Cases & Matrials (6^th edn OUP 2008)

[31] Matrimonial Causes Act 1973 s 2(6)

[32] Matrimonial Causes Act 1973 s 1(2)(e)

[33] Matrimonial Causes Act 1973 s 5

[34] N.V Lowe, G. Douglas, Bromley’s Family Law (11^th edn OUP
2015)

[35] Stephen (n 4)

[36] Facing the future: A Discussion Paper on the Ground for Divorce, (1988
Law Com No. 170)

[37] Michael (n 8)

[38] Ruth Gaffney-Rhys, Concentrate Questions and Answer Family Law (OUP
2016)

[39] N. Lowe & G. Douglas (n 34)

[40] Hollens v Hollens [1971]
115 SJ 237

[41] Stephen (n4)

[42] J Pryor, B Rodgers, Children in Changing Families: Life after
Parental Separation (2001)

[43] Matrimonial Causes Act 1973 s 6(1)

[44] Michael (n 8)

[45] Family Law: The Ground for Divorce (Law Com No 192)

[46] N. Lowe & G. Douglas (n34)

[47] Stephen (n 4)

[48] M. Welstead & S. Edwards, Family Law (4^th edn OUP
2013)

[49] Family Law Act 1996 s 12(2)

[50] N Lowe & G. Douglas
(n 34)

[51] Family Law Act 1996 s 9

[52] Stephen Gilmore and Lisa Glennon, Hayes & Williams’ Family Law,
OUP, 5^th edn.

[53] D. Norgrave, ‘Family Justice Review’ (London 2012)

[54] J.S Crouse, ‘No-fault divorce hits children hardest’ (2013)

[55] J. Reynolds & Dr C. Houlston & Dr L. Coleman &Professor
G. Harold, ‘Parental conflict: outcomes and interventions for children and
families’ (-)

[56] Jonathan Gruber, ‘Is Making Divorce Easier Bad for Children? The
Long Run Implications of Unilateral Divorce (2000)

[57] B. Hale, D. Pearl, E. Cooke, D. Monk (n 30)

[58] Steve Doughty, ‘Adultery Should No Longer be Grounds for a Divorce’
(2015)

[59] Michael (no 8)

[60] S. Harris-Short, J. Miles, R. George (no 15)

[61] Frances Burton, Family Law (2^nd edn Routledge 2015)

[62] Miller Smith v Miller Smith
[2009] EWHC 3623

[63] S. Harris-Short, J. Miles, R. George (no 15)