Divorce Essay Structure PDF

Preview

Summary

Summary of Divorce law in the structure of a standard divorce law essay question. Including academic critique. ...

Description

Introduction 







Widely accepted that society has a real stake in the preservation of marriage. It promotes harmonious home life in which to bring up children; encourages financial security; and develops social stability Society, and the laws that regulate society, must therefore be structured to promote and preserve marriage and make divorce a last resort. They must also acknowledge that divorce is a part of modern society However, law has arguably failed to keep up with advances in society and changes in our approach to relationships. Current divorce law is set out in legislation dating back to 1973 and attempts to revise the law two decades ago failed. In recent years debate has centred on the concept of no fault divorce. In 2015/16 the ‘no fault divorce bill’ entered into parliament.

Explain the current law   

MCA 1973 s1(1) Irretrievable breakdown of marriage is the sole ground for divorce, this must be evidenced by one of the five facts s1(2). Adultery and intolerable to live with R; behaviour of R that P cannot be reasonably be expected to live with; desertion; 2 year separation with consent and 5 year separation Thus divorce law is primarily fault-based. Three of the 5 facts require the petition to accuse the spouse of a matrimonial offence. Cannot obtain a quick divorce without alleging fault.

Explain the attempted reform   

  

Reforms were contained in parts 1-3 of the Family Law Act 1996 but were never introduced an eventually repealed. It would have allowed parties to divorce without alleging fault The government’s proposals had a strong marriage saving rhetoric. The aims of the reform were not to make divorce easier. Key aspects of the proposal focused on marriage saving rather than marriage ending. Parties would have to attend compulsory information meetings before divorcing – these meetings were poorly attended, they were too inflexible; ineffective and came at the wrong time Results of pilot projects were disappointing Government came to the conclusion that the proposed reform would fail to fulfil the police objectives in part 1 of the 1996 Act.

Explain the no fault divorce reform bill     

The no fault divorce bill, spear headed by Richard Bacon MP received its second reading in Parliament in May 2016 It would introduce an option to divorce through written consent of both parties will a one year cooling off period Despite its name it is not a hugely revolutionary bill. It doesn’t propose to abolish divorce based on fault, instead it aims to add a sixth fact One year cooling off period Australia, USA, Canada, Sweden and Spain all have no fault divorce

Would not result in higher divorce rates 

It would not make divorce easier – it is already easy – you just have to be unpleasant to each other





   



Some argue that the more liberal the divorce law, the more likely it is that the number of divorcing couples will rise. Deech is against any wholesale reform of the grounds for divorce as those whose marriage has broken down ‘can easily obtain divorces under the existing law’ so there is no need to ‘liberalise it’. In the first reading of the bill, Sir Edward Leigh stated ‘we know that the preponderance of evidence suggests that we will end up having more divorces and a higher divorce rate if no fault divorce is brought in’ [use this as an example of the stance that many take,, despite evidence suggesting otherwise] Deech: Conceptually and procedurally it is far more difficult to terminate other pillars of a stable life, such as employment and tenancy, than marriage We have the highest divorce rates in Western Europe at 6.68 per 1000 married people compared with Germany at 4.57 and France at 2.01 (2009) – it is easy to see why reform is feared Worries are understandable with the failed nature of the 1996 reform and the current high divorce rates Resolution: There is no evidence to suggest that no-fault divorce would have any long-term impact on the divorce rate any certainly evidence from other jurisdictions that have introduced no-fault based divorce is that any increase in divorce rate is only temporary. Perhaps the best predictor of what might happen if English law were to be amended comes from Scotland. Until 2006 Scottish divorce law was almost identical to that of England. The Family Law (Scotland) Act 2006 reduced the separation periods from two years to one where there was consent and from five to two where the respondent opposed the divorce. The rarely used ‘desertion; fact was removed. Within two years of the Act, following a mini-spike, divorce rates returned to the previous level.

Current provisions uphold the institution of marriage 



Some would argue that no fault divorce will undermine marriage as it would allow people to leave the relationship merely because they wish to do so. As Welstead suggests, the reality is that it is clear that the law already permits this although in a more convoluted and disingenuous manner and it is time to end this unsatisfactory state of affairs Current provisions are based on the belief that marriage is an important institution which provides stability for the couple, their children and for society. To allow an early and quick exit would be to trivialise and undermine the institution

Marriage involves a moral code 





Fault divorce sends out a message that marriage involves a moral code. o Although this raises the question of whether it is the function of divorce law to provide a moral code of behaviour and whether the law can influence human conduct o No fault divorce may threaten the balance of power between the parties and act as a bargaining chip whereby one party agrees to an unfavourable divorce in order to escape from the marriage Bainham: Some feel that abandoning fault is to remove the moral basis of marital obligations. The removal of adultery in particular might be thought to undermine the marital obligation of infidelity. The economist Robert Rowthorn likens marriage to that of the modern business partnership. He contends that marriage, like a business partnership, is an institution of trust which enables two people to have the confidence to make long-term investments in their relationships. Thus fault is central to the notion of marriage as a commitment. By making the terms of dissolution depend

on marital conduct, fault-based divorce protects those who fulfil their marital obligations and penalises those who do not Fault is what the legal systems should be about 

Piper and Sclater: For many, the notion of fault, of attributing blame to one party and exonerating the other, is what the legal system should be about, it is what ensures that justice is not only done but seen to be done

Acknowledge that some marriages just come to an end 



As Welstead asserts – no fault divorce perpetuates the idea that relationship breakdown involves a perpetrator of harm and a victim. In reality, when relationships reach the point of breakdown, it is commonly acknowledged that it is, more often than not, the fault of both spouses or of neither. Many relationships simply reach the end of their natural life. Welstead – For the most part, the law does not allow for a calm and civilised end to a relationship. This is particularly so where there is no obvious reason, or fault on the part of either partner, for a breakdown

Would allow parties to divorce with dignity and not fabricate fault 

  



 

 

Some would argue that no fault divorce will undermine marriage as it would allow people to leave the relationship merely because they wish to do so. As Welstead suggests, the reality is that it is clear that the law already permits this although in a more convoluted and disingenuous manner and it is time to end this unsatisfactory state of affairs Allegations of fault are fabricated by the parties in order to expedite the divorce process and avoid the long delays associated with the separation facts Would allow couples to divorce with dignity and put their children’s needs first Research by Resolution in June 2015 found that over half of all divorce petitions were fault based (citing unreasonable behaviour or adultery). Of those petitions, 27% said that the fault alleged was not true but was the easiest option No fault divorce would encourage couples to separate sensibly and responsibly without blame, whilst focusing on ensuring that any children are kept at the heart of all decisions that they make during the separation process The fault facts have been relied upon to obtain so called ‘quickie divorces’. Consequently a large amount of divorces, ostensibly based on fault are really divorces based on consent. Necessity to make unpleasant allegations in order to obtain divorce does nothing to assist the laws objective of ‘saying saverable marriages and disposing of those that cannot be saved with minimum stress and humiliation’. Rt Hon Elizabeth Butler-Sloss, former president of the Family Division, described obtained a divorce on the ground of unreasonable behaviour as a “hypocritical charade” Divorce by mutual consent seems to be a civilised way of permitting divorce and would tie in with the settlement culture that pervades the rest of the family system. o Procedural safeguards would have to be put in place to ensure that consent has been truly and freely given and to ensure that both parties have capacity to consent...