One and believe it is truly the last

One of the issues we have today, that is seen
as being one of the most highly controversial issues is regarding the law on
divorce. ‘Divorce is the legal ending of
a valid marriage contract.’1
In todays society divorce has become very common and so the rates of divorce
has also increased rapidly. Many people are against the idea of divorce and may
believe it is wrong for multiple reasons, a popular one being because of
religion. On the other hand many people may disagree and believe it is truly
the last resort and will be the result for themselves and their family’s
happiness. However, even though divorce has become so common for us in todays
society, to an extent that it’s become part of peoples ‘way of life’, this has
not always been the case. In fact divorce has only become available until the
middle of the nineteenth century. The rules governing the law of divorce is set
out in Part 1 of The Matrimonial Causes Act 1973
(MCA)2.
S1(1)
3
states that ‘irretrievable breakdown of
marriage is the sole ground for divorce but irretrievable breakdown is only
established on proof of at least one of the five facts’ which will be
discussed below. In this essay I will be addressing the situation in the
scenario between Priya and Patrick and exploring the law on divorce, advising
Priya on the best possible way for her to obtain a divorce.  

 

A petition is granted under MCA
(1973)4
when one party (petitioner) brings forward a petition for divorce, in which the
other party (respondent) may wish to accept or not. S35
states that ‘No petition for divorce shall be presented to the
court before the expiration of the period of one year from the date of the
marriage.’6 In this case, Priya is the
petitioner who is bringing forward a petition for divorce and Patrick is the
respondent. Therefore the burden of proof lies with Priya. As it has only been
six months Priya and Patrick have been married, a year must pass from the date
of her marriage before she can file a petition for divorce. In order for
Priya’s petition to be successful, she must satisfy the sole ground for divorce
which is set out in S1(1)7. However if Priya does
not fulfil any one of these five facts she will be unable to obtain a divorce.

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Firstly, S1(2)(b)8 states ‘that the respondent has behaved in such a
way that the petitioner cannot reasonably be expected to live with the
respondent.’ For Priya to satisfy this fact, it is not enough if Patrick
has only engaged in unreasonable behavior. She will have to prove that
Patrick’s behavior was of a nature that the ‘right thinking person’ would also
believe it would be unreasonable for Priya to live with Patrick. Priya must
also ensure that these complaints made of Patrick are ‘reasonably precise’.9 In regards to this
fact, Priya can raise the issue of Patrick causing her to feel ‘humiliated’,
‘stupid’ and ‘without any political awareness’, simply due to her choice in
voting. Another issue she can raise is that their personalities may not be
compatible, as she wants to do outdoor activities where as Patrick would rather
stay at home. In the scenario it states that Patrick fails to surprise her with
grand romantic gestures. However, this fact comes with a limit as to what
amounts to unreasonable behavior, so an omission may not constitute
unreasonable behavior as the respondent is not breaching any marital
obligations.10 As to why, Patrick not surprising
Priya with grand romantic gestures may not be enough to satisfy this fact. It
also states that Patrick “constantly nags” Priya because of the amount she
spends on household shopping. This may suggest this is an ongoing behaviour of
Patricks and not just a ‘one off’. The court will take into consideration the
personality, disposition and behavior of the petitioner and not just of the
respondent, in order to determine whether the conduct meets the requirements to
fulfil that ground 11 This fact is mainly concerned
with how Patrick’s unreasonable behavior effected Priya. A case that
illustrates this is the case of Buffery12, where the petition for divorce had
failed as the respondent did not show any unreasonable behavior on the
petitioners part. Therefore failed to meet the requirements of fact B, even though the marriage had apparently
broken down. In contrast to Buffery13, in Livingston14, the petition was successful as the
petitioner was constantly criticized by her husband which amounted to
unreasonable behavior. In this case Mr. Justice Dunn established a ‘jury test’ that asks ‘what would the right
thinking man conclude about the complaint made of’.15 Similar to Priya’s situation in Owens16, the husband also refused to consent
to the divorce. It was held that making twenty seven allegations would not make
the petition stronger then only focusing on a few main ones. Hence, Priya
should focus on the main issues instead of raising multiple, so it does not
look as if she is ‘nit-picking’.17

 

Secondly, S1(2)(d)18, states ‘that the parties to the marriage have lived
apart for a continuous period of at least two years…and the respondent
consents to a decree being granted’.’19 In order for Priya’s petition
regarding this fact to succeed, she must establish that a separation of two
years has happened immediately before the presentation of the petition and that
Patrick has agreed with the petition. Priya and Patrick can live in the same
accommodation but still live apart,20 as long as they are
both living their separate lives. This is illustrated in the case of Hollens,21 where a husband and
wife were living in the same accommodation but did not speak, eat or share a
bed. Although Priya is sleeping in a separate room to Patrick, she is still
engaging in activities such as, cooking their meals and doing the laundry will
not be seen as living apart. A similar case to Priya’s situation is Mouncer22, where the court held, spouses
eating together and talking to eachother did not amount to living apart.
Therefore Priya may fail her petition for this fact, since she failed to
establish that she has been living apart from Patrick for two years. Also this
section states that Patrick would need to consent to the decree being granted,
which he did not.

 

Furthermore, if Priya’s petition for fact b is unsuccessful she can petition for S1(2)(e)23, which states ‘that the parties to the marriage have lived apart for a continuous
period of at least five years…’24 This fact requires Priya and Patrick
to live apart for five years instantly after the date of the petition filed. Although
this fact requires a lot of patience, Priya will not need to prove wrongdoing
on Patrick’s part or get his consent for the divorce.25 As a last resort Priya
can rely on fact e to secure that her
divorce is granted. It may be a good option for Priya to move to Belize with
Robert as it would be a great opportunity for Priya to start moving forward
with her life, whilst the clock is also running. However, S5 26, provides a defence for
Patrick if the divorce results in ‘grave financial or other hardship’27. The case of Rukut,28establishes that “grave”
amounts to financial as well as other hardships.29 Referring back to the
scenario, Patrick as a Roman Catholic would not agree to the divorce as it’s
against his religion and therefore may raise this as a “grave” issue. However the
catholic church allows a ‘declaration of nullity’ known as annulment, which
Patrick can get through a Vatican. This would make the marriage void in the
eyes of the law and would allow Patrick to remarry in church.30

 

The No Fault
Divorce Bill was introduced in 1996 under The Family Law Act 1996.31 The purpose of this
bill was to simply provide straight forward solutions within the law. Anyone
who wished to file a petition for divorce were required to attend an
information meeting under this act. The purpose of the information meetings are
to provide the parties with information on the divorce proceedings and
communicate to the parties the different facilities available to them, as well
as any advise in relation to marriage breakdown. One of the key aims was to
‘persuade couples to be reconciled’. The information meetings encouraged
couples to consider saving their marriage and councilors were available to any
of the couples who wished to do this.32 However this bill did
not get implemented and was in fact repealed in 2001, due to the requirement on
the parties to attend “information meetings” to encourage reconciliation which
proved unworkable.33

 

In October 2015, Richard Bacon MP introduced the No Fault Divorce Bill 2015-2016 into
parliament. The purpose of this Private Members’ Bill was to reform the law on
divorce by introducing another fact to the MCA34 on joint petition. This
requires both spouses to mutually agree on divorce. It enables couples to
obtain a divorce with a much more fast paced process and without having to
solely rely on fault based facts and the need to establish long separation
periods that come with the current law. 35 According to the No Faults Divorce Bill 2015, In order
for Priya to be granted a divorce, she will need Patrick’s consent. Therefore
due to the fact that a mutual agreement on the divorce does not exist, since
Patrick did not consent, unfortunately Priya would fail to satisfy the reform
suggested in this bill. This bill’s main concern focuses on encouraging the
couples to reconcile. As Priya is adamant on obtaining a divorce and has no
hope of reconciliation this would only result in her waiting an excess amount
of time.

 

The current law on fault
based divorce remains an issue that is highly criticized in today’s society for
multiple reasons.36
One of the key reasons as to why this area of the law is subject to
inconvenience is due to the law being ‘confusing and misleading’. This stems
from the fact that parties must prove one of the five facts as a cause for the
irretrievable breakdown in the marriage. This may lead the parties to claim one
of the facts that may not be the real cause of the marital breakdown. Another
aspect that is criticized is that the law that appears in the statute book is
very different to the way that law is practiced. The President of the Family
Division Sir James Munby admitted: “The
reality is that we have had divorce by consent for 30 years”37,
however this is not what the actual law states.38
Another reason for criticism is because ‘it distorts the parties’ bargaining
position’. This argument roots from when one spouse is adamant for the divorce
but the other is not and is completely fine with delaying the process or cannot
consent for religious reasons, similar to Priya’s situation. In these
situations, the party that is not so keen on the divorce can use his position
as a weapon that can be used to an advantage in the bargaining process. The
current law also produces hostility and bitterness, as it involves the parties
to look back on all the bad times of their marriage, which loses any
encouragement for reconciliation. According to the Law Commission39,
the separation for two years is not fair to those who may not be able to afford
another accommodation for two years.40

 

In the United States,
people are offered a number of marriages from which they can choose the one
that matches them best. For instance, a couple select a marriage that could
result in divorce when either spouse chooses. Although if the couples wanted
they could also pick a marriage that included a clause, that declared divorce
can only be a result, only if adultery was committed. These marriages with
clauses are known as ‘covenant marriages.’ This approach to divorce in The USA
is much more preferred then the law in the UK as it provides a freedom of
choice, as parties have the power of entering a marriage with the power to control
the level of commitment, as well as getting out of it whenever they want.41

 

In Egypt, divorce by
agreement is seen as the most convenient type, in the opinion of the judges,
since it was not down to them to favor one spouse over the other.42
This type of divorce involves both spouses coming to a mutual agreement and
consenting to a divorce.43
The procedure for this divorce is often considered most favorable as it does
not require any fault to be proven and therefore would develop the UK’s law in
relation to obtaining a divorce if it were to be enforced. However it will not
benefit Priya in her situation since Patrick has not consented to the
divorce. 

 

Although in the UK
divorce on demand is not practiced, it is in a number of other countries as the
laws are ‘based on the principle that a spouse’s desire to dissolve the
marriage shall be respected.’ For instance, in Finland and Sweden divorce on
demand is practiced but often the spouses are required to rethink their
decision (usually six months). Referring back to the scenario, divorce by
demand would be the most convenient type of divorce for Priya to file for as it
requires only one party to consent to divorce. If this type of divorce was
enforced in the UK, it will offer support to many people like Priya,  who are unhappy and feel as if their trapped
in a marriage because their spouse is refusing to consent to a divorce.
Therefore this approach, will be the most beneficial reform to the UK as it
respects the wishes of all those in similar situations as Priya. Also, in order
to make the approach more effective the rules can be adjusted. For example, a
separation period can be introduced, where the spouses do not cohabitate for a
specific period of time, similar to countries such as, Iceland and Norway.44

 

In conclusion, having
explored the possible options for Priya, in obtaining a divorce, it is clear to
see that the process will not be so straight forward. Priya needs to wait
another 6 months before she can file a petition, to complete the one year wait.
If her petition for fact B is unsuccessful and Patrick remains adamant on his
decision to not consent to the divorce, she may have to rely on fact e and complete
the wait of five years separation. Although fact e requires a lot of patience, it
may be the best option for her if all the others prove unsuccessful. This is because
her divorce will be secured, even if it’s after a five year wait. Also if Priya
moved to Belize with Robert, she can start moving on with her life whilst the
time starts to run. Once the court has announced the
marriage to have irretrievably broken down, they will issue a decree nisi
followed by a decree absolute. Once Priya has been issued with a decree
absolute she is only then considered divorced and free to remarry. Overall
the current fault based system in the UK is seen to be lacking in some aspects.
For example some petitioners may exaggerate the respondents ‘unreasonable
behavior’ in order to obtain a quick divorce. Therefore it is clear to see that
the current law is in need of a reform to improve its effectiveness.

 

 

 

1 David Knox and Caroline Schacht, Choices In Relationships
(Thomson Wadsworth 2008). 146

2 The Matrimonial Causes Act 1973

3 The Matrimonial Causes Act 1973 S1 (1)

4 The Matrimonial Causes Act 1973

5 The Matrimonial Causes Act 1973 S3

6 ‘Matrimonial Causes Act 1973’ (Legislation.gov.uk,
2017) accessed 13 December
2017.

7 The Matrimonial Causes Act 1973 S1 (1)

8 The Matrimonial Causes Act 1973 S1(2)(B)

9 Wendy Mantle, The
Handbook Of Separation And Divorce (Routledge, 2002 2017).39

10 Pheasant v Pheasant 1972 1 All ER 587

11 Ash v Ash 1972 1 All ER 582

12 Buffery v Buffery 1988 2 FLR 365

13 Buffery v Buffery 1988 2 FLR 365

14 Stallard-Livingston v Stallard-
Livingston 1974 Fam 47

15 Frances Burton, Family
Law.95

16 Owens v Owens 2017 EWCA Civ 182

17 ‘Owens V Owens: Time For Reform Of Divorce Law?’ (Anderson
Rowntree, 2017)

accessed 14 December 2017.

18 The Matrimonial Causes Act 1973 S1(2)(d)

19 Frances Burton, Family
Law.145

20 Naylor
v Naylor 1961 2 ALL ER 129

21 Hollens
v Hollens 1971
115 S.J. 327

22 Mouncer v Mouncer 1972 1 All ER 289

23 The Matrimonial Causes Act 1973 S1(2)(e)

24 Jonathan
Herring, Family Law.149

25 Ibid

26 The Matrimonial Causes Act 1973 S5

27 Jonathan
Herring, Family Law.149 Talbot v Talbot 1971
115
SJ 870

28 Rukat v Rukat. 1975 Fam 63. 59.

29 ‘Divorce Flashcards | Quizlet’
(Quizlet.com, 2017)
accessed 13 December
2017.

30 ‘Annulments (Declarations Of
Nullity) | For Your Marriage’ (Foryourmarriage.org, 2017)

accessed 14 December 2017.

31 The Family Law Act 1996

32 Jonathan Herring, Family
Law. 155-156

33 (2017)

accessed 14 December 2017.

34 The Matrimonial Causes Act 1973

35 SUSAN. HEENAN HEENAN, FAMILY
LAW CONCENTRATE (OXFORD UNIV PRESS 2017).50

36 Law Commission Report 192 (1990)

37 Jonathan Herring, Family
Law. 151

38 ibid

39 Law Commission Report 192 (1990)

40 Jonathan Herring, Family
Law.152

41 Ibid. 160

42 Ron Shaham, Family And
The Courts In Modern Egypt (Brill 1997).111

43 Sonia Harris-Short, Joanna Miles and rob George, Family
Law. 56

44 Jens M Scherpe, The
Changing Concept Of ‘Family’ And Challenges For Domestic Family Law (Edward
Elgar Publishing 2016).192

 

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