1. and are irretrievable. The criticism is of how

1. support marriages with a chance of survival

2. decent burial of marriages that are indubitably dead with
minimum embarrassment, humiliation and bitterness

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Law commission no 170 – para 6.2 – there is overwhelming
support for the law of divorce to remain restricted to marriages that have
broken down and are irretrievable. The criticism is of how this is established
and the rules that make up this one ground for divorce

 

A majority of divorces are undefended so the faults that
have 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 can
in fact support the acts second objective and prevents embarrassment or
humiliation to the parties by having to go to a court of law in front of a
judge

 

The only facts that are able to start the divorce process immediately
are the facts of adultery or intolerable behaviour. It is easy therefore to see
how these may be used even if the facts are not true, and this is to achieve
the divorce as soon as possible.

 

MCA s2(1) if lived together for 6 months after learning of
the adultery then this cannot be used as the fact for the ground

 

Appendix D tables for the research that was carried out found
that there was support for the two options available but the non-fault based of
5 years was too long

 

Improvement on the old law that relied almost entirely on
proof 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 do
contain fault. There are also cases such as Chilton v Chilton where there is
clearly irretrievable breakdown but the divorce has been refused. This can case
hardship and pain for the parties which could lead to bitterness which is in conflict
with the second of the laws aims here. The couple may agree to divorce based on
mutual agreement but would have to use the fault based facts if they wanted it
immediately, it can lead to hostility and bitterness if one is to have to write
down behaviour that caused the breakdown and often exaggerate it to make it
seem unreasonable for them to live with the respondent. Also, if they want it
to go through without investigation then there can be no defending by the
respondent and this can lead to bitterness as they cannot put their side of the
story forward and it can be seen only as all their fault

 

the behaviour fact is also something that can cause
confusion, it is not the behaviour that needs to be unreasonable but it must
make it unreasonable for the petitioner to be expected to go on living with the
respondent, despite this being an objective test it still has to be taken into
account the type of person the petitioner is and what he or she would regard as
unreasonable – the behaviour might not even be unreasonable it might simply be
unreasonable to live with them. Lifestyle choices – astwood v astwood

 

The MCA s1(3) states that the court will conduct enquires
into the claims but in a vast majority of applications unless the divorce is
defended against by the respondent then this is not done. The system still
allows for the parties to lie and exaggerate the claims in order to achieve the
divorce, they might exaggerate the behaviour to make it unreasonable in order
to get the immediate divorce they wish for

Despite it being a good feature that there is the option for
a fault and non-fault based divorce it is often difficult for parties to achieve
the non-fault based divorce, the separation of two years with consent can be
hard to achieve unless the parties both have considerable resources or there is
co-operation as to payments between them from the offset. It is not even said
that they could live in the same household but be separated in many households
today, 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 hold
its first objective which is to ensure that saveable marriages are in fact
saved. The fault based facts obviously go against this and if one of the
parties was to use these and exaggerate claims or make them up in order to
start divorce proceedings then this can lead to extra conflict and prevent the
marriage from being saved. Also, the other method of a minimum of two years
separation can prevent the making up of the two parties that might have
occurred if they had stayed together for the two years.

 

Reform;

 

The current law is better than the old fault based system so
a return to the old more or less totally fault based facts would not be desirable
and not help to achieve the laws aims. It would not prevent marriage breakdown
and would lead to even more hostility as there is no non-fault based option
available. The current law does offer a mixed system which is perceived as good
but could do with some better non-fault options such as time reduction

 

Inquest – this would entail the courts conducting a full
judicial inquiry and would be unlikely to lead to any better outcomes, the
claims made would likely be even more exaggerated in order to convince a court
in person as opposed to on paper. The court proceedings in which every detail
of the marriage and the breakdown is also not likely to do anything to help the
potentially 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 but
this would not really give the parties a chance to come to terms with it and
try to save the marriage. It can be argued however that our current law is
already here in the terms of the first two facts being used by one of the
parties.

 

There could be an option for divorce by mutual consent but
this can be seen as only one option and could not be the only ground available
for divorce, what would happen if one party was to withhold consent or to have
disappeared? Some parties could be held hostage by the consent and end up being
manipulated into a situation

 

The options for reform that are favoured:

 

Mixed system – there is much support for a system that had
both fault and non-fault bases facts but there seems to be the issues with the
fact that the non-fault based facts are the ones that take the longest to
achieve the divorce. A reduction in the time of separation may lead to a higher
uptake in the choice of the non-fault based facts and could see a reduction in
the hostility that comes from using a fault based fact to establish the ground
for divorce. My opinion is that whilst the fault based facts should remain in
the system the non-fault based facts should also be widened and a reduction in
the separation time.

 

There was a call for a fixed term of separation to be
included in the reform but as we have already seen there is still the problems
that exist with the current non-fault based facts, it would be hard for
families of low income and resources to comply with it and doesn’t do much for
reducing the hostility in the breakup or the attempts to save the marriage.

 

The most popular reform option comes in the form of a period
of consideration and reflection, it does not require the separation of the
couple but does give them time to consider what they want. It can be started by
a formal statement to the courts of the start of the consideration and then
after the fixed time they could apply for divorce. It means that the couple
would not have to rely on the fault based facts and neither would they have to
conduct separate household situations.

 

 

I agree with the law commissions proposals that the sole
ground for divorce should be the irretrievable breakdown of the marriage. I
however believe that this ground should still be able to be proven on more than
more one facts for the breakdown. I think there should be a choice between the
first three current fault based facts which provide an option for immediate
divorce and then an option for mutual agreement to bring an immediate end to
the marriage. Why should the law stand in the way of two parties who have
agreed to divorce? If they have the right to choose to get married then the
same people with the same mental capacity should have the right to choose to
end the same marriage. Sir James Munby has even asked the question of if we
even need judicial supervision of divorce or should uncontested divorces be
simply registered on a register. I think that it is important to keep the fault
based facts, why should one partner have who has been subject to behaviour they
find intolerable have to either wait a fixed time or to have to gain agreement
from the other party to escape the intolerable situation.  I also think that the option that is proposed
for reform of consideration and reflection would not do much to solve the
current issues of a term of separation, the only thing it would solve is the
length being reduced from 2 to 1 years. It would not take away any of the
issues surrounding hostility, families of lower income would still have to live
in the same household for a year and if they have filed the official paper for
consideration 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 live
separately before divorce in the same potentially hostile household and what
good does it do for any of the children having to live in this household? I
believe the fault based factors are fine and the option of mutual agreement
should be added. Both still using the current process of if the grounds of
divorce are agreed then the courts issue the decree nisi and six weeks after
this the parties can apply for the decree absolute where the marriage is legally
terminated. I believe this is enough time for the parties to have changed their
minds if they so wished to.