Necessity of Reform in Divorce Law, Improving Upon Its Foundations

Introduction

Marriage and divorce are major parts of an individual’s life, and as such, the law reflects this. It is a fundamental legal status change and the protection is offered in statute and common law. These rights are recognised through a statutory safeguard that only allows divorce when the marriage has completely broken down and cannot be repaired. The current divorce law of the Matrimonial Causes Act 1973 is unsatisfactory for its aimed requirements. The government believes in the importance of keeping the protection, this is reflected in their recent proposals for reform. The government released a proposal in 2018 proposing to reform the current requirement for people to give evidence of what the law calls fact. Believing that the requirement serves no purpose and harms more than helps the parties, adding that it aggravates family conflict and potentially damages children’s futures. The current law in the UK was introduced in the 20th century developing till today with little change. Although there was an effort to reform the law in 1996, it was subsequently repealed with no further reform attempted, consequently divorce law has remained stagnant subjecting itself to criticism. This essay will focus on the necessity of reform in divorce law, improving upon its foundations.

Divorce law was first introduced on the foundation of the matrimonial offence and was primarily reformed in the Divorce Reform Act 1968. Making the sole ground for divorce the irretrievable breakdown of the marriage on pre-established proof. The reform act was subsequently consolidated the foundations for the Matrimonial Causes Act 1973, and in 1984 the total time to bring the proceedings for a divorce, was shorted from three years to one year of marriage elapsing, this benefited parties in marriages that were harmful. S.3(1) provides an absolute one-year bar on petitioning for a divorce after marriage. To prove an irretrievable breakdown of marriage the petitioner must substantiate one or more of the five facts specifically adultery, behaviour, desertion, 2 years separation with both parties consenting or 5 years separation where the respondent doesn’t need to consent as evidence to the court. The process is usually straightforward if the respondent does not contest it allows for the application timeframe to shorten as there are fewer variables for the court to debate over. In Owens v Owens, none of the five facts was satisfied. Although the court agreed the marriage had irretrievably broken down, they could not find that the sole ground was proven and could not, therefore, grant a decree of divorce. Similarly, in Buffrey v Buffrey the Court of Appeal were unable to validate the party's irretrievable breakdown of marriage as none of the five facts could be evidenced. At face value, divorce law seems to be non-fault based, yet the first two and arguably third are fault-based.

Adultery was originally the only ground available for divorce. Now s.1(2)a) requires petitions based on adultery must have established that the respondent has committed adultery, as well as the petitioner finding it intolerable to continue cohabitation with the respondent. The judgement from Cleary v Cleary provides the needed connection between the two elements that the wording of the statute does not. Statue s.1(6), offers no definition of ‘adultery’ but a guideline stating adultery only being able to be committed by the respondent heterosexually. Common law gives a similar interpretation as being voluntary intercourse between two persons of the opposite sex, of whom, both are married but not to each other. This narrow definition was debated by Parliament in 2013 during the debate of the Marriage (Same-sex Couples) Act 2013, K. Green stated that the wording needed to extend and reflect marriage in today’s openness towards inclusivity. In S.E.P. v D.D.P. the Supreme Court of British Columbia granted a petition to divorce when the petitioner’s husband had a homosexual relationship during the marriage which he confessed to. In comparison, it is clear that the current law is reluctant to be more inclusive. For civil partnerships the offence is unavailable. This supports Tinder’s view that Parliament is “squeamish about defining gay sex” meaning that the facts for adultery can only be used by same-sex spouses if the respondents ‘conduct’ is with the opposite sex. This unequal legal treatment is arguably in human rights terms is a clear illustration of discrimination, disagreeing with Article 14 ECHR. Additionally, in the supplementary provision s.2(2) there is a complete bar to present a petition if the parties live together exceeded 6 months after the discovery of the adultery. Staying with the respondent for such a length of time after the discovery works against the petitioners’ needs to prove the adultery affected the petitioner with a large enough impact for the cohabitation to be intolerable.

The second fact that could be relied upon is when the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them, as provided in s.1(2)b). The test was provided in common law by Dunn LJ in his judgement in Livingstone-Stallard v Livingstone-Stallard. The ‘behaviour’ fact does not need to be unreasonable but like adultery, the act itself is not enough, it must affect the petitioner. The requirements, however, are different and the court has to apply a different test which compiles objective and subjective aspects. Reference to the facts as ‘unreasonable behaviour’ is misleading. The ‘behaviour fact’ covers a wide range of conduct like the violence of the husband or distress caused by living conditions. In Katz v Katz, behaviour constituted conduct including an act or omission, but not the state of mind. Behaviour can be an action or a series of minor occurrences as stated in Stevens v Stevens, but in cases involving mental illness, Rees J held that the court must take into account the disabilities and temperaments of both parties, the cause of the behaviour and whether the petitioner has knowledge of such causes, the intention, the impact on the petitioner and the family unit, duration and the prospects of cure or improvement in the future. Which unfortunately has not been explored with a precise understanding of the effect of mental illness.

Desertion

As the third fact desertion is rarely used. Requirements in S.1(2)c) differ from separation in that the respondent has willingly and intentionally abandoned the petitioner leaving without their consent for 2 years continuously with no intention to return. A definition was given in Le Brocq v Le Brocq however, a clearer one is provided in Quraishi v Quraishi. Where desertion consists of an unjustified withdrawal from the cohabitation of one spouse without the consent of the other and to remain permanently apart, virtually echoing the statute. Though the judgement from Perry v Perry gives an exclusion where the respondent’s desertion will not be held if the petitioner acted in such a way which justifies the departure the exception is barely used given the nature of the seldom-used provision.

2-years Separation

In s.1(2)d) a divorce can be granted on the continuous period of 2 years of separation of the parties with both being in consent. Mouncer v Mouncer shows how difficult this is to apply and prove in the current day. If the applicant has the consent of the respondent, they have to show a separate household and one spouse has to have recognised that the marriage is at an end. The supplementary provision S.2(6) gives the guideline the parties are treated as living apart unless living with each other in the same household. The provision attempts to explain further the requirements needed by the petitioner, although it can be seen to add complexity to already unclear requirements.

5-years Separation

Under s.1(2)e) a divorce can be granted on the uninterrupted timeframe of 5 years of separation of the parties. Differing from 2-years, there is no requirement the respondent consents to the divorce, yet the same definition needs to be proved, which can add confusion to the untrained petitioner in their application. Although s.5 offers the defence of grave hardship, the hardship must flow from the divorce itself, and not just as a social disadvantage. As was the case in Parker v Parker where the husband was able to provide another means of financial support, contrasting with Lee v Lee where the wife was able to prevent the divorce, as the process from the family home was inadequate to cover her’ and her son’s costs. Being at a religious disadvantage is sufficient although being in an unhappy marriage is not.