Length of a Marriage

Introduction

In the UK, people tend to cohabit more and marry at an older age; cohabitation tends to lead to divorce at the end of the day, so after a long period of cohabitation and later marriage, people tend to divorce. According to Mozley and Whiteley, divorce is the termination of a marriage otherwise than by death or annulment.

History and current law on divorce

Before 1857 the ecclesiastical courts determined the law on divorce. Although nullity decrees could be made divorce was not available through the courts. The only form of divorce was by an Act of Parliament, this was an expensive procedure that was open to only a few people. [2] The 1857 Matrimonial Causes Act however granted divorced for the innocent party where the accused party had committed adultery. [3] Grounds for divorce were expanded in 1937 to include desertion, cruelty and incurable insanity. [4] The Matrimonial Causes Act 1973 states the sole ground of divorce in s1(1) which is ‘that the marriage has irretrievably broken down’, however the only way of proving irretrievable breakdown is by proving that one of the five facts(grounds) in s1(2) of the MCA has occurred. This grounds of divorce are the same throughout England, Wales and Northern Ireland, they are; adultery, unreasonable behaviour, desertion, two years separation with both party’s consent to divorce, and five year separation. [5] The first three grounds for divorce are fault based, that is, they are actions that can be committed by one spouse to the other, allowing the innocent spouse to apply for a divorce, while the last two grounds are no-fault based, they only require evidence of separation. The 1969 Divorce Reform Act reaffirmed the three existing fault grounds of adultery, desertion and cruelty which was later expanded to ‘unreasonable behaviour’ and included the two no-fault separation grounds. Scotland and Northern Ireland later adopted the same five grounds. [6]

The Family Law Act 1996

According to on.divorce.co.uk the Family law Act 1996 was proposed to revolutionise the divorce process. The Family law Bill was passed by parliament in 1996 but due to the significant changes it would result to at that time, it was not likely to be brought into effect until 1999 or 2000. This Bill, as far as the divorce element was concerned started life as Report No192, from the Law Commission, in 1988. The aim of that report was to propose divorce reform based on the notion of ‘no fault’. More specifically, it proposed that divorce should take place on the basis of unilateral unsubstantiated demand, that is, if one party to a marriage considered the marriage was over then the other party would not be able to prevent the effects of divorce and the divorce itself from taking place. [7] The Act was also to encourage mediation which is still an underutilised resource and one of the by-product of which would hopefully be to reduce hostility between the parties. Research was done on this mode of divorce and pilot studies were also conducted around the country, but unfortunately the result from the research showed that it would not work in the UK. The pilot studies were regarded by the Government as very disappointing, so it was not put in force [8] .

Section 1 of the Family Law Act [9] sets out some general principles which would govern the law under divorce; these principles try to save ‘savable marriages’ and it could also be said that it supports the institution of marriage. The new law proposed Information meetings which would be compulsory if one spouse opposed the divorce or there were disputes over children or finance. The aims of these meetings were to communicate a range of information on the process of divorce and its penalties, although the disadvantage of this was that individual advice was not given to the parties involved. Professor Walker explained in her study of the pilot information meetings that:

‘People want an individual meeting to be sensitive to their personal situation and the stage they have reached in the process of marriage breakdown, and flexible enough to focus on providing information which is relevant to their needs at that time. Relevance and timing are key factors in the provision of information.’ [10]

A report of marital breakdown could then be prepared three months after the Meeting; filling of this at Court would then start proceedings. Subsequently there would be a period for reflection and consideration commencing 14 days after the Statement was received by the Court and ending 9 months after that (with limited exceptions). Following the period of reflection either party can then apply for a Divorce Separation Order, usually being granted if less than a year had elapsed after the Period of Reflection has ended and financial matters have been settled. As stated by the legislation found on ondivorce.co.uk, alas the results from the research conducted on Information Meetings was disappointing, this is one of the reasons for the new legislation now being put back indefinitely. [11]

Reconciliation

One of the main aims of the Family Law Act 1996 was to persuade couples to become reconciled. The only provision specifically designed to assist reconciliation in the Matrimonial Causes act 1973 is in s6. This states that if a petitioner consults a solicitor in connection with a divorce, the solicitor is required to certify whether or not the possibility of reconciliation has been discussed and, if appropriate, whether the names and addresses of organisations or people have been provided. [12]

No –Fault v Fault based Divorce

There has been much debate about whether there should be a fault or no-fault divorce based system.

California enacted the first American no-fault divorce law in 1969. According to Cindy Cheung, the American Academy of Matrimonial Lawyers explains that no-fault divorce allows a couple to divorce without proving that one of the spouses caused the end of the marriage by engaging in misconduct. In contrast, fault divorce involves identifying grounds for divorce such as adultery, cruel and inhumane treatment, abandonment and other reasons, depending on the divorce laws of the country or state. [13] One of the benefits that can be found by using the no fault ground of divorce is that as neither spouse must prove the other spouse’s guilt or misconduct, no-fault divorce could be less time-consuming because the spouses could possibly avoid trial. Furthermore, no-fault divorce means that the court can no longer punish the spouse financially, such as by favoring the non-guilty spouse during property division or in an alimony award. [14]

It could be seen from Richard’s argument in 1994 on the coming of legal ‘no fault’ divorce that a no-fault system could be criticised on the basis that it does not deal with the issues which really concern the parties. [15] To some divorcing spouses, justice is only served if the court declares that the other party was the cause of the marriage break down. [16] Psychologists also argue that blame is a psychological crucial part of the divorce process, and that making allegations of fault can even be cathartic. As an experienced mediator put it, for most clients ‘their marriage has not died, but has been killed’. [17]

The law should seek to uphold societal values and discourage conduct which damages the society. Having no fault divorce undermines marriage and the ideal of it being a life-long obligation, as it allows a spouse to end marriage whenever he or she wants. As Baroness Young argued:

The message of no fault is clear. It is that breaking marriage vows & breaking a civil contact, does not matter. It undermines individual responsibility. It is an attack upon decent behaviour and fidelity. It violates common sense and creates injustice for anyone who believes in guilt and innocence. [18]

Some economists have entered the debate to argue in favor of using divorce to maintain a stable marriage. Rowthorn in 1999 argued that a no-fault divorce system undermines the view of commitment that is key to the nature of marriage. It provides men, in particular, the opportunity to leave the marriage when it is favorable for them, leaving women severely disadvantaged. Cohen in 2002 argued that:

‘At the time of formation, the marriage contract promises gains to both parties. Yet the period of time over which these gains are realized is not symmetrical. As a rule, men obtain early in the relationship, and women late. This follows from women’s relative loss value. Young women are valued as mates by both old and young men. When they choose to marry a particular man they give up all their other options….The creation of this long term imbalance provides the opportunity for strategic behaviour whereby one of the parties, generally the man will perform his obligations under the marriage contract unless otherwise constrained once the marginal benefit falls below opportunity cost.’ [19]

Some argue that it is now a human right to divorce [20] and that forcing someone to remain married against their wishes is an infringement of their right to family life. However, the European Court of Human rights has made it clear that the European Convention does not include a right to divorce. [21] Further it was suggested that neither the law of divorce as set out in the Matrimonial Causes Act 1973 nor the rejected proposals under the Family law Act 1996 could be challenged under the Human Rights Act 1998 [22]

Consequences of high divorce rate

There were 166,700 divorces in the United Kingdom in 2003 and the percentage of married couples divorcing per year in England and Wales was 1.4% but 1.0% in Scotland. [23] Furthermore, 55% of divorces involved one or more children under 16. [24]

Recent statistics show that fewer people tend to divorce nowadays but the rate of cohabitation has increased rapidly and the rate of marriage has dropped. The report published by the Office of National Statistics, shows the number of divorces decreasing by 5% in 2008 to 121,779 from 128,232 in 2007. [25] More than half of the divorces in England and Wales involve children under 16.

In its green paper [26] ‘Supporting Families’, the Government itself approved that ‘Rising crime and drug abuse are indirect symptoms of problems in the family. [27] A worrying report created in 1998 and reviewed by the liberal-minded Joseph Rowntree Foundation concluded that; ‘Children of divided families have a higher probability of being in poverty and poor housing; being poorer when they are adults; behavioural problems; performing less well at school; needing medical treatment; leaving school or home when young; becoming sexually active, pregnant, or a parent at an early age; depressive symptoms, high levels of drinking and smoking and drug use during adolescence and adulthood.’ [28]

The Exeter Family Study found that divorce does not usually ease conflict for the children: indeed the reverse is true:

‘…the experience of most children whose parents have divorced is of increased conflict over an extended period, with the child involved to an extent that may not have been the case while the marriage lasted.’ [29]

The Church of England and Divorce

The Church of England teaches that marriage is ‘till death do us part’. Its ancient position until recently has been to allow divorce but not remarriage as it is argued that in God’s sight the parties are still married. [30] However, in 2002 the council of the Church approved the proposal stating that ‘in exceptional circumstances, though the former spouse is still alive, a divorced person could marry again in church’. [31]

Conclusion

The traditional family structure with a married couple and their co-resident kids is declining, mostly due to an increase in the number of households containing cohabiting or single parents. [32] Given the devastating effects of divorce on the parties involved, the society and children, even individuals who do not embrace the Christian view of divorce should be opposed to measures which make divorce even easier. [33] In most divorce cases, children are not consulted before the divorce is made, although under section 10 of the family law Act an order preventing the divorce could be made if the divorce would cause the child some form of hardship. [34] People tend to marry less and cohabit more. Providing an easier route for divorce would increase the rate of divorce in the country and this would also increase the amount of single parents and kids. Studies have shown that children growing up with continuously married parents do better than children in single parent families on a range of cognitive, emotional and developmental outcomes, both in childhood and adulthood. [35] Statistics indicate that every time the law on divorce has been relaxed, divorce increased. The incorporation of no-fault divorce would bring about lots of problems; therefore no-fault divorce should not be incorporated.