support marriages with a chance of survival 2. decent burial of marriages that are indubitably dead withminimum embarrassment, humiliation and bitterness Law commission no 170 – para 6.2 – there is overwhelmingsupport for the law of divorce to remain restricted to marriages that havebroken down and are irretrievable. The criticism is of how this is establishedand the rules that make up this one ground for divorce A majority of divorces are undefended so the faults thathave been listed are never investigated in order for the divorce to be granted.
One can argue that the new was as opposed to the old way of an oral hearing canin fact support the acts second objective and prevents embarrassment orhumiliation to the parties by having to go to a court of law in front of ajudge The only facts that are able to start the divorce process immediatelyare the facts of adultery or intolerable behaviour. It is easy therefore to seehow these may be used even if the facts are not true, and this is to achievethe divorce as soon as possible. MCA s2(1) if lived together for 6 months after learning ofthe adultery then this cannot be used as the fact for the ground Appendix D tables for the research that was carried out foundthat there was support for the two options available but the non-fault based of5 years was too long Improvement on the old law that relied almost entirely onproof of fault The current law is however confusing and misleading: The only ground from the law is said not to involve fault,however the only way to prove this ground is via 5 facts and three of them docontain fault. There are also cases such as Chilton v Chilton where there isclearly irretrievable breakdown but the divorce has been refused. This can casehardship and pain for the parties which could lead to bitterness which is in conflictwith the second of the laws aims here. The couple may agree to divorce based onmutual agreement but would have to use the fault based facts if they wanted itimmediately, it can lead to hostility and bitterness if one is to have to writedown behaviour that caused the breakdown and often exaggerate it to make itseem unreasonable for them to live with the respondent.
Also, if they want itto go through without investigation then there can be no defending by therespondent and this can lead to bitterness as they cannot put their side of thestory forward and it can be seen only as all their fault the behaviour fact is also something that can causeconfusion, it is not the behaviour that needs to be unreasonable but it mustmake it unreasonable for the petitioner to be expected to go on living with therespondent, despite this being an objective test it still has to be taken intoaccount the type of person the petitioner is and what he or she would regard asunreasonable – the behaviour might not even be unreasonable it might simply beunreasonable to live with them. Lifestyle choices – astwood v astwood The MCA s1(3) states that the court will conduct enquiresinto the claims but in a vast majority of applications unless the divorce isdefended against by the respondent then this is not done. The system stillallows for the parties to lie and exaggerate the claims in order to achieve thedivorce, they might exaggerate the behaviour to make it unreasonable in orderto get the immediate divorce they wish forDespite it being a good feature that there is the option fora fault and non-fault based divorce it is often difficult for parties to achievethe non-fault based divorce, the separation of two years with consent can behard to achieve unless the parties both have considerable resources or there isco-operation as to payments between them from the offset. It is not even saidthat they could live in the same household but be separated in many householdstoday, there would need to be complete separation between meals, washing,cleaning and all household tasks – mouncer v mouncer Another factor is that the current law does nothing to holdits first objective which is to ensure that saveable marriages are in factsaved. The fault based facts obviously go against this and if one of theparties was to use these and exaggerate claims or make them up in order tostart divorce proceedings then this can lead to extra conflict and prevent themarriage from being saved. Also, the other method of a minimum of two yearsseparation can prevent the making up of the two parties that might haveoccurred if they had stayed together for the two years. Reform; The current law is better than the old fault based system soa return to the old more or less totally fault based facts would not be desirableand not help to achieve the laws aims.
It would not prevent marriage breakdownand would lead to even more hostility as there is no non-fault based optionavailable. The current law does offer a mixed system which is perceived as goodbut could do with some better non-fault options such as time reduction Inquest – this would entail the courts conducting a fulljudicial inquiry and would be unlikely to lead to any better outcomes, theclaims made would likely be even more exaggerated in order to convince a courtin person as opposed to on paper. The court proceedings in which every detailof the marriage and the breakdown is also not likely to do anything to help thepotentially saveable marriage and only lead to more hostility and bitterness,this proposal has already been rejected in the 1969 reforms There could be immediate unilateral demand on divorce butthis would not really give the parties a chance to come to terms with it andtry to save the marriage. It can be argued however that our current law isalready here in the terms of the first two facts being used by one of theparties. There could be an option for divorce by mutual consent butthis can be seen as only one option and could not be the only ground availablefor divorce, what would happen if one party was to withhold consent or to havedisappeared? Some parties could be held hostage by the consent and end up beingmanipulated into a situation The options for reform that are favoured: Mixed system – there is much support for a system that hadboth fault and non-fault bases facts but there seems to be the issues with thefact that the non-fault based facts are the ones that take the longest toachieve the divorce.
A reduction in the time of separation may lead to a higheruptake in the choice of the non-fault based facts and could see a reduction inthe hostility that comes from using a fault based fact to establish the groundfor divorce. My opinion is that whilst the fault based facts should remain inthe system the non-fault based facts should also be widened and a reduction inthe separation time. There was a call for a fixed term of separation to beincluded in the reform but as we have already seen there is still the problemsthat exist with the current non-fault based facts, it would be hard forfamilies of low income and resources to comply with it and doesn’t do much forreducing the hostility in the breakup or the attempts to save the marriage. The most popular reform option comes in the form of a periodof consideration and reflection, it does not require the separation of thecouple but does give them time to consider what they want. It can be started bya formal statement to the courts of the start of the consideration and thenafter the fixed time they could apply for divorce.
It means that the couplewould not have to rely on the fault based facts and neither would they have toconduct separate household situations. I agree with the law commissions proposals that the soleground for divorce should be the irretrievable breakdown of the marriage. Ihowever believe that this ground should still be able to be proven on more thanmore one facts for the breakdown. I think there should be a choice between thefirst three current fault based facts which provide an option for immediatedivorce and then an option for mutual agreement to bring an immediate end tothe marriage. Why should the law stand in the way of two parties who haveagreed to divorce? If they have the right to choose to get married then thesame people with the same mental capacity should have the right to choose toend the same marriage.
Sir James Munby has even asked the question of if weeven need judicial supervision of divorce or should uncontested divorces besimply registered on a register. I think that it is important to keep the faultbased facts, why should one partner have who has been subject to behaviour theyfind intolerable have to either wait a fixed time or to have to gain agreementfrom the other party to escape the intolerable situation. I also think that the option that is proposedfor reform of consideration and reflection would not do much to solve thecurrent issues of a term of separation, the only thing it would solve is thelength being reduced from 2 to 1 years.
It would not take away any of theissues surrounding hostility, families of lower income would still have to livein the same household for a year and if they have filed the official paper forconsideration of divorce then what are the chances of their situation changing?Is it fair to leave families who don’t have the financial resources to liveseparately before divorce in the same potentially hostile household and whatgood does it do for any of the children having to live in this household? Ibelieve the fault based factors are fine and the option of mutual agreementshould be added. Both still using the current process of if the grounds ofdivorce are agreed then the courts issue the decree nisi and six weeks afterthis the parties can apply for the decree absolute where the marriage is legallyterminated. I believe this is enough time for the parties to have changed theirminds if they so wished to.