'The present divorce law (Matrimonial Causes Act, 1973) is unsatisfactory. Although it appears to retain some fault grounds, it is in reality ‘no fault’ divorce; but also with much bitterness involved. It is quick and impersonal, and gives insufficient attention to the children.' (http://www.famyouth.org.uk/bulletin.php?number=103)
Is this a fair reflection of the current law? Should the law of divorce be reformed?
Outline the present law of divorce. There is one ground for divorce; that the marriage has broken down irretrievably. Irretrievable breakdown can be proved by one of five facts: adultery, behaviour, desertion, two years' separation with consent and five years' separation.
Irretrievable breakdown is also the ground for dissolution of a civil partnership but there are only four facts that can be used to prove irretrievable breakdown.
What are the problems with the current law? Consider in particular the issues raised in the question. For example, does it create bitterness? Consider, in particular, the case law about whether or not parties are separated when living in the same household. Is the law of divorce quick and impersonal and does it give insufficient attention to children? Discuss any other problems that you think the law raises.
Is the current law in fact no-fault divorce or dissolution? It may be relevant to consider:
- Whether there is any difference in using adultery (marriage only and the definition of adultery only covers an affair with a member of the opposite sex, even in same sex marriage) or behaviour as opposed to the separation ground. For example, is there is a stigma attached? Does it make a difference to the divorce or dissolution process?
- The fact that the evidence of irretrievable breakdown is not relevant to the financial settlement: a party is not penalised financially for being at fault.
What are the advantages and disadvantages of no-fault divorce? You may find it relevant to consider the experience of the 1996 Act in dealing with this point. You may also want to consider the support for no fault divorce by Sir James Munby, the President of the Family Division (https://www.judiciary.gov.uk/wp-content/uploads/2014/05/munby-press-conference-290420141.pdf). Further, divorce is now primarily an administrative process. Does this make a difference? Should the current law be reformed and, if so, is no-fault divorce the answer? In particular does it address the concerns raised in the question and the more general concerns you have identified?