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Divorce Notes

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Divorce What aims should Divorce Law have?

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To support the institution of marriage o As per S.1(1)(a) FLA 1996
? Herring:

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Divorce is a tragedy for the couple and for the state - loses about 5p per PS1 of income tax

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Can also be said to shake social stability by challenging the image of the family as comforting, secure and enduring o Does divorce law affect the divorce rate?
? Deech:

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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

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

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Legislation might be a response to divorce stats rather than the cause of them
? Herring: obviously divorce law linked to divorce rate

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

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

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To save marriage if possible o As stated by FLA 1996 s.1(1)(b) - legal proceedings should persuade parties to be reconciled and not to turn back from divorce o 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

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

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Avoid exacerbating bitterness of the process o As stated by s.1(1)(c)(i) o 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

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Promote a continuing relationship between the spouses, particularly where children o As stated by s.1(1)(c)(ii)

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o 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,

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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 o At started by s.1(1)(c)(iii) o 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 o Richards: Any family lawyer can provide numerous examples of what has to be regarded as typical behaviour:

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

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

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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

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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 o 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 1/4 had been talked to about the separation, only 5% felt they had got a full explanation and could ask questions.

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