Spouses core basis for the current law for

Spouses may not
end their marriage on demand. Just as there are certain legal requirement to
enter into a relationship, they are required to comply the same to end it. A
decree of divorce releases the parties from all rights and obligation of
marriage. It also grants and imposes new post marital right obligation on
divorced couples. For many couples, divorce is both mentally and physically
damaging. According to Office for National Statistic in England and Wales, the
number of divorces have fell from 119,589 in 2010 to 106,959 in 2016. In spite
of the fall in divorce rate, it is still high. Deech (1990) however has argued
that the divorce legislation itself which affects the divorce rate. She argues
that divorce increases whenever new divorce legislation, which make divorce
easier come into force.

      The Matrimonial Causes Act stands as a core
basis for the current law for divorce in UK. Couples have to prove specified
grounds in Part 1 of their act to end the marriage. Prior to MCA 1973, a
divorce should only be granted by proving that the respondent had committed
matrimonial offence such as adultery, cruelty and three years of dissertation
by virtue of Matrimonial Act 1937. By then, there had been an increasing
movement against operation of fault based law in 1950’s.. Parties have to place
the blame onto another to get rid of their marital status and there was no
effort on behalf of the law to save marriage from breaking down. Growing
demands for a non-fault based and consens7ual divorce between couples paved the
way to review the law by Morton Commission of 1956. .This commission found an adverse
finding with the publication of Archbishop of Canterbury Group’s Report titled
Putting Assunder- A Divorce Law of Contemporary Society which disagree
matrimonial offence as the only ground of divorce

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And seeks for
reform as the law ignores viability of marriage. Law Commission eventually
agreed with Archbishop Group critism of law and reached for solution which was
later encapsulated in Divorce Reform Act 1969. Therefore, the latter statute
has been consolidated with other relevant legislation in the MCA 1973 which
remains the present law on divorce.

 According to s.1(1) Matrimonial Causes Act
1973 is that the only ground for divorce is the breakdown of marriage. However
without the proof of one of the five facts, it will not be sufficient to end a
legal relationship. In, Buffery v Buffery, a couple found that their 20 years
long marriage has broken down and they did not find anything in common .The
Court of Appeal stated that a decree would not be granted as the wife could not
prove any of the five facts. However, in the case of Le Marchant v Le Marchant,
the court held that if parties have been living apart for five years, the court
might reasonably come to the conclusion that the marriage has come to an end,
even if respondent denies. In s. 3 of the 1973 Act, states that application for
divorce can only be presented after one year of the marriage. Th4e rationale is
to let both parties to sort out and to prevent being available for marriage
within days of divorce. Once it is determined that parties is entitled for
divorce, the judge will grant the decree nisi It is not until decree absolute
is granted that the marriage ceases. Under s.1(5) MCA 1973, petitioner can
apply for decree absolute six weeks and one day after the decree nisi is
granted. However, if petitioner fails to do so, they can do so after three
months have passed. According to the case of Miller Smith v Miller Smith court
does have a discretionary power under its inherent jurisdiction to delay or
stay an application to make a decree absolute but that can only be exercised if
special or exceptional circumstances are established.

The five facts
which irretrievable breakdown of marriage are set out in s. 1(2) of Matrimonial
Causes Act 1973. Firstly ,to prove that there is adultery, it must be shown
that that respondent has commited adultery and applicant finds it hard to live
with respondent. In order to raise adultery, there must be a consensual sexual
intercourse between a married person and a person either unmarried or married
of an opposite sex. Under the Matrimonial Causes Act 1973 s. 1(6) provides
that  the conduct between the respondent
and person of opposite sex only constitute for adultery. The policy of the 1969
reform was that adultery should be relevant only insofar as it was a symptom of
the marriage breakdown. As the result, the legislation added the requirement
that spouses applying the law should find it intolerable to live with
respondent. According to Clearly v Clearly, it is not necessary that he or she
should find the respondent adultery intolerable. If one spouse knows that the
other has committed adultery  but has
decided to live with him or her 
thereafter for six months or more, an application cannot be based on
that act of adultery. It is assumed that the spouse has not satisfied the test
that is intolerable to live with the respondent. However if spouses cohabit for
a lesser time, they may rely on the earlier adultery. This provision allows
spouses to resume cohabition after adultery and make an effort to repair their
marriage but leaves the option of divorce if their efforts fail.

Behaviour is the
fact which is commonly relied on to prove irretrievable breakdown of the
marriage 48 percent of petitions in 2011 relied on this fact. Although s
1(2)(b) is referred to unreasonable behaviour it is not the respondent
behaviour itself which must be unreasonable. According to the case of Bannister
v Bannister it is the expectation that petitioner should continue to live with
respondent behaviour which must be seen as an unreasonable one. Dunn Lj in
Livingstone-Stallard  v Livingstone-
Stallard suggested the right question to ask was; would any right-thinking
person come to the conclusion that this husband has behaved in such a way that
this wife cannot reasonably be expected to live with him, taking into account
the whole of the circumstances and the characters and personalities of the
parties?’ Acceptable standards of behaviour changes over time as it is hard to
imagine a modern court endorsing the suggestion in Ash v Ash that a violent
spouse could be expected to live with one who is equally violent. The case
provide no clear answer to the question of principle: what is it that
reasonable to expect one spouse to tolerate.

Desertion
whereby one spouse abandons the common matrimonial life without justification
is one of the matrimonial offence which survives the 1969 reforms unaltered.
The main elements of desertion are the fact of separation and intention of
desert. In Le Brocq v Le Brocq factual separation can established even if couple
remain in the same roof. To established intention of desert what is required is
an intention to bring matrimonial union permanently to an end. A separation
will not amount to desertion if the applicant has consented to it or if there
is a good cause for separation. Dessertation must have lasted for a continuous
period of two years immediately preceding the presentation of the application.
If spouse returns before filing of the application, no decree can be granted
even if one of the spouses has been absent for more than two years. Brief
reconcillation do not affect the ability of a spouse to apply on this ground.

Eg The fourth
and fifth facts  which breakdown may
inferred both involve the parties living apart Section 1(2)(d) requires
evidence that the parties have lived apart for a continuous period of at least
two years immediately preceding the application and that respondent consents
for decree to be granted. Section 1(2)(e) requires proof that parties have
lived apart for a continuous period of five years. When the Act comes into
force, five years separation was the second most popular ground for divorce. It
is important to be aware of the similarities and differences between s. 1(2)(d)
and (e). Some additional protection is afforded to the respondent by virtue of
s.10(2). Courts  held that living apart
involves both physical and mental element. As physical separation is concerned
the courts adapted the old law of desertation and held that… As the mental
element is concerned the Court of Appeal in Santos v Santos held that living
apart  could not start for the purpose of
this fact when one party recognise that the marriage is ending. An
interpretation of this act is that parties must form an intention to live apart
from the beginning of the two year period and continue to do so until they sign
the consent to the grant of decree at the end of two years. Under s.10 (2) the
respondent may apply to the court after the granting of a decree nisi for
consideration of ones financial position after divorce. The decree absolute
will be granted by the court if it satisfied that financial agreements
are’reasonable and fair’ or the best that it can made in the circumstances.
Under s.5  court may dismiss an
application on five years separation if such dissolution will result in grave
financial or other hardship to the respondent and in all circumstances will be
wrongful to dissolve the marriage

For many years,
there has been criticism of the law relating to divorce. The current law of
divorce has been criticised by academics, judges and politicians for many
reasons.The goal of the present law has not been able to achieve its aim in
practice after many years of the enactment of the law. In the year 1982, a
committee lead by Booth J was introduced to scrutinise the procedure related to
matrimonial causes. After the examination, the committee found the current law
to be dissatisfying, mainly on divorce based on behaviour facts. Later on, a
report was published in 1985 that state that modifications need to be done to
lessen the hostility and bitterness between spouses. Based on the findings, the
Law Commission stated that the present law is confusing, misleading and
outdated. However in Mears, claims that it is not misleading as lawyers can
explain the true meaning of the law to the parties. The law furthers to be
criticised as in practise it differs so much as it from the statute book. In
Baksi, Sir James Munby stated that: ‘The reality is that we have had more
divorce by consent for 30 years yet that is not what the law actually says’.

The Law
Commission also suggest that the two year separation ground is not relevant for
parties that are unable to afford a different accommodation for two years.
Alternatively, they must wait for five years or either one of the fault based
grounds. Mears also argues that it is not a fair criticism as it favour those
who are unable to prove ground of divorce. The commission criticism is binding
if there is no reasonable reason for requiring separation.

The law is not
only unjudt but it can lead to an unfair distortion in the bargaining power of
parties. The policy of the law is to encourage parties to resolve these through
agreement  through solicitors, medication
or concillation service. Negotations may be distorted  by which party is in a stronger position in
relation to divorce. The strength of the position depends on  how reluctant or anxious to be divorced and
how difficult or easy for a party to disprove or prove the five facts. This
will amount to a party being severely disadvantage

 

The system
encourages parties to use fault-based grounds because they are quicker. It may
encourage the parties to use fault- based ground even though they might think It’s
not relevant.  This  can produce a feeling of bitterness, distress
and humiliation which are experienced at the time of separation for the
parties. The Commission stated that the current law made it challenging for a
number of separated couples to be divorced.

The parties are
required to make allegations rather than fixing their marriage .S.6 is solely
design to aid reconcillation of parties Under s.6, a solicitor for divorce  is required to certify whether he or she has
discussed with the petitioner the possibility of a reconciliation and provided
the solicitor with name and address of individuals who can help in
reconcillation. The aim is to ensure that solicitor reflect on whether the
parties give the marriage a second thought. This provision is only useful if
the parties consult a solicitor.The worse victim of divorce is the children of
those divorced parents involved in a conflict. The present law did not aid the
conflict but instead focuses on the fault based conduct.

The problem concerning
the divorce procedure in the United Kingdom have been in existent for many
years. The Deputy President of the Supreme Court, Baroness Hale, suggest for a
‘no fault’ system which would eventually ‘reduce bitterness’, She considers this
as the main shortcoming of the present law .One of the way out is to ‘make a
declaration that your marriage had irretrievably broken down and if you were
still of that view a year later, then you get the divorce. That’s that’.

 In summary, by formulating a ‘no fault’ based
divorce system, many of the concerns that currently exist regarding increased
hostility and its knock-on effects, could be eradicated.

Sir Nicholas
Wall who advocated for a no fault base system for divorce stated that  in the 19th and 20th
century,marriage is a social status and it is important to show that you are a ‘innocent
party’ .

Sir Paul
Coleridge suggest for an independent commission to reform divorce law, arguing
that family relationships are now “unrecognisable” from the 1950s, when the
last review was conducted. He said that”The world we inhabit today is not
the same world as we inhabited in 1950. Socially, society is unrecognisable.
The norms of behaviour, the stigmas and the taboos have all changed or
evaporated,”

The
inflexibility of the current law was highlighted by the case of Owens v Owens. The
Wife filed her divorce petition on 6 May 2015 on the basis of section 1(2)(b)
of the Matrimonial Causes Act 1973, namely that the Husband had behaved in such
a way that she cannot reasonably be expected to live with him. . HHJ Tolson QC
heard oral evidence from both parties and determined that the Husband had not
behaved in such a way that the Wife could not reasonably be expected to live
with him. He dismissed her petition. The Wife appealed the dismissal of her
petition. The current law means a Petitioner who cannot rely on the facts of
desertion or separation, must rely on the fault based facts of adultery or
unreasonable behaviour. Mrs Owens loses her appeal before the Supreme Court,
she will have to wait three years before she can divorce on the basis of five
years separation. Undoubtedly, this would strengthen calls for the Government
to introduce “no fault” divorce. However, opponents have warned the concept
threatens the institution of marriage.

A further
argument was made that Mrs Owens’ Article 8 (respect for family life) and
Article 12 (right to marry) Convention rights were being contravened, but these
arguments have been dismissed by both Judge Tolson and the Court of Appeal. It
appears that although there is a right to marry under the Human Rights
Convention, there is nothing within the legislature to imply there is a
converse right to divorce.

 

The Court of
Appeal has been entirely transparent in their motives for upholding Tolson’s
judgement and have heavily criticised the law as it currently stands. They have
accepted that their judgment comes at personal cost to Tini Owens, who is now
trapped in her marriage until she can fulfil the criteria for 5 years
separation without consent.

Lady Justice
Hallet was pointed in her criticism of the law, proclaiming that she reached
her conclusion with “no enthusiasm whatsoever” and that judges are not able to
“ignore the clear words of the statute on the basis they dislike the consequences
of applying them.” She placed the onus on Parliament to “decide whether to
amend section 1 and to introduce “no fault” divorce on demand

Professor
Nicholas Hopkins,a Law Commissioner, said today: “The Law Commission believes
that a modern law of marriage should allow couples to get married in the way
they want and in a place that is meaningful to them, while continuing to
recognise the interests of society and the state in protecting the status of
marriage.”The law of marriage in England and Wales is now out of date,
inconsistent and overly restrictive. Our modern society deserves a clearer set
of rules that gives all couples greater choice and certainty, while providing
protection from the abuses involved in sham and forced marriage.”