Divorce Reform Notes

Current Law & Problem

Divorce is the legal end of a marriage. A civil partnership is ended by dissolution. The only ground for a divorce or dissolution is irretrievable breakdown. Five facts can be used to prove a marriage has irretrievably broken down: adultery, behaviour, desertion, two years’ separation with consent, and five years’ separation. (Section?) You cannot use adultery to prove that a civil partnership has irretrievably broken down, but the other four facts can be used. Behaviour, adultery, and desertion are fault-based: one party is blamed for the breakdown of the marriage. The two types of separation do not involve blaming one party. Under the current law, behaviour and adultery allow for the quickest divorces. This means that divorce based on fault is quicker than no-fault divorce. This has led to a number of calls for reform.

FLA Disaster- Baroness Deech said reform was dangerous- anyone who wants divorce can easily do so in present law- what is liberalisation of law? Does liberalization means to get rid of fault? There was an attempt to get rid of fault but it is proved to be dangerous, even law is liberalized (conservative morality removed) but the reform is not what society wants. Divorce is bad. Does it mean liberalization will always be dangerous?

No reason why marriage and civil partnership should not be capable of being dissolved by consent of parties-divorce of marriage and dissolution of civil partnership should be ended by consent? Marriage: can we get divorce by consent? No, because there is a ground of divorce and it is Irretrivable breakdown of marriage. The ground cannot be proved through consent. There are only 5 facts to proof ground- adultery, behaviour which is not reasonable to live with, desertion. Consent and separation, and separation for 5 years. Same for civil partnership, behaviour which is not reasonable to live with, desertion. Consent and separation, and separation for 5 years. No way through consent alone.

'The present divorce law (Matrimonial Causes Act, 1973) is unsatisfactory. Although it appears to retain some fault grounds, it is in reality ‘no fault’ divorce; but also with much bitterness involved. It is quick and impersonal, and gives insufficient attention to the children.'

For example, does it create bitterness? Consider, in particular, the case law about whether or not parties are separated when living in the same household. Is the law of divorce quick and impersonal and does it give insufficient attention to children? Discuss any other problems that you think the law raises.

Is the current law in fact no-fault divorce or dissolution? It may be relevant to consider:

- Whether there is any difference in using adultery (marriage only and the definition of adultery only covers an affair with a member of the opposite sex, even in same sex marriage) or behaviour as opposed to the separation ground. For example, is there is a stigma attached? Does it make a difference to the divorce or dissolution process?

- The fact that the evidence of irretrievable breakdown is not relevant to the financial settlement: a party is not penalised financially for being at fault.

Can divorces be easily obtained under the present law? On the one hand, this statement is true. The number of divorces have increased throughout the years. Furthermore, divorce has become a largely administrative procedure and few divorces are challenged or require judicial examination of the facts relied upon. Explain the law of divorce briefly. It can be said that the 5 divorce facts allow a variety of ways for parties to prove irretrievable breakdown of marriage, and so divorce can be obtained with some ease even in a variety of circumstances.

On the other hand, it may be inaccurate to state that divorce is easy to obtain. On closer examination, the facts used to show IBM are not as flexible as they seem. Adultery requires sexual intercourse to be proven and sexual behaviour falling short will not suffice. Further, living together for more than 6 months after the P finds out about the adultery will be a bar on using it as a fact. Many people do try to work things out after an incident of adultery and so may find themselves barred from later relying on it as a fact to show IBM. Separation requires the parties to live in separate household which may be financially onerous. While separation under the same roof is accepted, the requirements are stringent and subject the parties to an artificially high standard of proving they live separate lives. This may cause bitterness and further tension and anger between the parties.

It does seems that if the parties want an immediate divorce they have to rely on the first 3 facts which are fault based. There seems to be no mechanism to allow for a mutual immediate divorce where neither party alleges fault on the part of the other but instead mutually accept and are in agreement that the marriage has come to an end.

It is telling that most divorces use the behaviour ground in S1 (2)(b) as that seems to be the most flexible of all the grounds, allowing it to cover a wide range of behaviour and not requiring the parties to prove a period of separation. There is some evidence to show that parties utilise this ground...

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