Divorce law has always a difficult area of law to progress as there are many views to take into consideration. Divorce law hasn’t been reformed for at least twenty years, and calls for reform have continued to grow. In this essay I shall discuss the current problems with divorce law, reform options that have been proposed as alternatives, and the problems and controversy that these alternatives have created.
Under s.1(1) of the Matrimonial Causes Act 1973 (MCA) provides that a petition for divorce can only be presented ‘on the ground that the marriage has broken down irretrievably’ . Irretrievable breakdown of marriage can only be proved by establishing one of the five facts listed in s.1(2), namely; adultery, behaviour, desertion, two years’ separation with consent, and five years’ separation.
The case Buffery v Buffery (1988) , highlights the need for reform. The spouses had been married for over 20 years and had drifted apart. Although they lived in the same property, they didn’t communicate with one another and had nothing in common. The court accepted that the marriage had broken down irretrievably, but refused to grant a decree because none of the five facts were proven. Demonstrating that to avoid waiting five years for a divorce, couples are forced into using the fault facts.
The aims of divorce law were laid out by the Law Commission, seeking to achieve the following objectives: “to buttress, rather than to undermine, the stability of marriage, and when a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness, and the minimum bitterness, distress and humiliation”. Simply, divorce law should ensure that every encouragement is given to reconciliation, which the procedure shouldn’t discourage.
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The current law has been criticised about its failure to achieve its original objectives in ‘Facing the Future’. These criticisms were analysed further in ‘The Ground for Divorce’ , highlighting six problems with the law. It’s confusing, unjust, distorts parties bargaining positions, provokes unnecessary hostility and bitterness, does nothing to save the marriage and can make things worse for children.
Initially, the law appears to be non-fault based, as the ground for divorce is irretrievable breakdown of marriage. However, three of the five facts used to establish this are based on fault; creating confusion for couples. Fault-based law is faster than having to rely on the separation grounds, which is unjust as using fault goes against the aims of reconciliation. Unreasonable behaviour is the most common reason for divorce in 2017, with 37% of husbands and 52% of wives petitioning for divorce on these grounds. Showing that behaviour is one of the easiest and fastest of the five facts to prove to obtain a divorce.
Because of this, it may encourage the parties to petition on a fault-based ground when they might not otherwise have done so, leading to resentment and hostility between parties. These figures are regrettable as the policy for ending a marriage with minimum bitterness, distress and humiliation is undermined when either party uses behaviour fact. The behaviour fact also doesn’t promote an ongoing relationship as parties are forced to blame one another. When there are children involved, it’s particularly important for the relationship to remain civil, to reduce tension within the family.
Although one of the aims of divorce law is to try to reconcile a marriage, once a couple have filed for divorce under the current law it will be extremely difficult for them to become reconciled. If one wishes to be divorced, they are obliged either to make allegations against the other or live apart for a lengthy period of time, destroying any lingering chance of saving the marriage. If there’s insufficient evidence of the first four facts, and one party is keen to divorce quickly, the other could use the threat of a long drawn out divorce as a bargaining tool to obtain a larger financial settlement or children.
It’s generally agreed that there’s a need for a reform of divorce law. Although all reform has been rejected so far, these next four in particular were dismissed immediately: return to fault, inquest, immediate unilateral demand, and mutual consent. They promoted bitterness and hostility by going against the aims of divorce or by putting a couple’s intimate details on show. They provided insight to the controversary that surrounds reform, as there are so many different opinions on the topic that it’s impossible to satisfy every view. This has led to a stagnation of divorce law.
The Law Commission gave an additional three models for reform after their previous rejections : a mixed system, divorce after a fixed minimum period of separation, and divorce after a fixed period for reflection and consideration. The latter was the Law Commission’s preferred option and led to the Family Law Bill.
Due to the Law Commission’s updated aims of divorce law in ‘Family Law: The Ground for Divorce’ , and the Government’s proposals set out in the ‘White Paper’ , an attempt at reform was introduced in Parts I-II of the Family Law Act 1996 . The proposed law would’ve radically reformed the current law. The proposed law would’ve been divorce over time, requiring couples to face the emotional and practical consequences of divorce. Instead of proving irretrievable breakdown through the facts, a couple were required to follow and complete a set of procedural steps before being able to get a divorce. These steps included an information meeting, a statement of marital breakdown, and a period of time for reflection and consideration where the parties were required to sort out their arrangements before their divorce.
No-fault law would’ve reduced the bitterness and hostility between the couple, and provided couples with the necessary information and mediation needed to get through a divorce with minimum damage. Unfortunately, during a pilot study, it revealed that there was a dissatisfaction with the information meetings and an unwillingness to use the mediation services. This caused Part I-II Family Law Act 1996 to be repealed. In fact, the results of the pilot study showed that those who came in uncertain on whether they should divorce ended up “tipping those who were uncertain about their marriage into divorce mode” , going against the policy objectives.
Despite 68% of the public favouring no-fault based divorce , the abolition of the act was met with great relief by critics. Many felt it has inherently flawed and unworkable in practice, which, from viewing the pilot studies results, are correct. Resolution felt that the laws would create delay and uncertainty, which is certainty true as length of time for reflection and consideration would create unnecessary stress and anguish on family’s trying to sort out arrangements about their property and children. Freeman also agreed with this view adding that it would also likely increase domestic violence as tensions would be running high.
Some thought the Government were thinking too highly of the public. Cretney considered the Government to be too “naïve” about what was likely to happen during reflection. Realistically, once a person has decided that they want a divorce, it’s already too late to change their mind. Cretney discussed that couples wouldn’t spend time considering whether their marriage could be saved, but would be exploiting emotional or financial advantage, or brooding their grievances. Eekelaar had an extreme criticism of the information meetings and considered them to be a form of social engineering.
His belief was that by using information meetings the Government was ‘using the institutions of law itself to obstruct individuals from access to the rights conferred on them by law’. As marriage and law are both legal rights, by forcing couples to attend a compulsory information meeting to obtain a divorce could be described as an obstructive of justice.
Looking at the criticisms and requirements for the Family Law Act, it’s not surprising that reform of divorce law is controversial. Not only do you have to create a law that is workable in practice but also have to stick to the aims of divorce law as close as possible as well as trying to avoid the trap of being accused of making divorce harder or easier, there seems to be an incredibly fine line between them.
The criticisms which led to the proposed law are still true today, with emphasis on a civilised and non-hostile experience. Because couples are fabricating behaviour faults to quicken the divorce process under the current law, the need for reform has increased. A recent attempt was the No-Fault Divorce Bill 2015-16. It was based on divorce law in Scotland, where the separation time is reduced to a year encouraging separation rather than fault. The Bill aimed to reform by adding an extra fact to the current five, which would allow a couple to divorce without having to establish the lengthy separation periods or to fabricate one party’s fault.
There would be a time limit of one year to allow parties to reflect on whether they really wanted a divorce, but there was no need for that time to be separated. However, the Bill didn’t progress. Despite the attempt being good, many felt that the modification to the current law wasn’t enough. Resolution and authors of ‘Finding Fault’ took similar views and suggests the reform wouldn’t reduce the use of fault facts in England . Likely because changing the law slightly wouldn’t remove the fundamental problems of the current law as most areas of family law would have to be reformed to make it successful .
Resolution and authors of ‘Finding Fault’ proposed a notification-style where divorce would be available if one or both parties register that the marriage has broken down irretrievably and the intention is confirmed by one or both parties after a minimum period of six months . Unlike the current law, it would be purely administrative, with no requirement for judicial scrutiny. It would also eliminate many of the current problems of the law, such as fault-generated conflict. Unlike the 1996 study, this proposal has worked international in countries such as Spain, Italy and Sweden .
Despite many wishing for reform, there are some that feel there’s no need for it. Baroness Ruth Deech has strong views against any reform at all believing that “all those whose marriages have broken down can easily obtain divorces under the existing law, so there’s no need to liberalise it” . However, this is not strictly true. In Owens v Owens (2018) , the judge found that the marriage had broken down but was denied as she wasn’t able to establish unreasonable behaviour. The outcome of Owens has reignited the urgent need for reform, specifically no-fault reform.
In conclusion, reform of divorce law has, and will continue to be a controversial issue. Throughout past attempts at reform, there’s a clear recurrent theme of the same issues as every attempt is met with dissatisfaction as there are many conflicting views on the subject. Recommendations have been brought up, only to be disregarded from the same reasons as previous years. It’ll be incredibly difficult to create a divorce law that will be a perfect balance of easy and hard as divorce has to be tailored to a ‘one size fits all’ approach, despite divorces being the opposite.
