Evolution of Divorce Laws in England and Wales

Introduction

Marriage is essentially religious irrespective of countries. Since the ancient times, marriage has been served as a concept of building a sacred bond between a man and woman for eternity. Hence, the concept of divorce was regarded as an attempt to breakdown the societal flow of a country and even in the 21st century, the family law provision of England and Wales provide very narrow and restrictive segments in favour of obtaining a decree of divorce. Divorce has been an alien concept due to the sacramental characteristic that has been imposed on the marital bond. Before 1857, divorce was essentially regarded as a privilege that only the wealthy people of the society could avail and the complicated process of annulment had always kept it a fancy word for the rich people of the United Kingdom. It is only after the introduction of the Matrimonial Causes Act, 1857 that the annulment process and divorce slowly moved to the civil court and the concept that a marriage is nothing but a contract between two people was established.

After the famous case of divorce, Owen v. Owen, that drew the attention of the media, it became the perception of the UK that the Supreme Court of the country is slowly and steadily changing the narrow perspective towards ‘no-fault divorce’ but it goes without saying that it still would be a long way in the future. In this essay, we shall discuss the divorce laws of England and Wales, the defects and limitation of the divorce law of the country and critically analyze how the judiciary and the legislation still tries to protect the sanctity of the institution of marriage, with the help of several recent case laws.

The concept and ground of Divorce in England and Wales

In England and Wales, the only ground under which a divorce is allowed to be is that the petitioner has to prove that the marriage has “irretrievably broken down”. The Matrimonial Causes Act, 1973 provides five grounds under which either of the spouses could file for a divorce namely – i) Adultery ii) Desertion iii) Unreasonable behavior iv) mutual separation v) contested separation. While for desertion and mutual separation, the time limit is two years before which the divorce petition could not be filed, in case of contested separation, the separation needs to be at least five years. Hence, for a spouse to get a decree of divorce in England and Wales, it is the onus of the petitioner that he/she has to be prove that the marriage has irretrievably broken down due to one of the abovementioned five grounds mentioned under the Matrimonial Causes Act, 1973. Apart from the abovementioned grounds, a divorce shall not be granted to a marriage by the courts. In the case of Buffery v Buffery, the court held that in order to succeed in getting a divorce, any one of the abovementioned factors In the case of Gollins v Gollins, it was held by the court that cruelty cannot be held as valid ground for divorce.

After the Matrimonial Causes Act of 1857, the Divorce Reform Act, 1969 was introduced where provisions of divorce were held up and it was mentioned that for a couple to get a divorce by mutual consent, the period of separation has to be minimum two years. Afterwards, the Matrimonial Causes Act, 1857 was amended in the year of 1975 and financial relief was made a part of the divorce process in England and Wales. With time the concept of divorce has shifted towards the ground of ‘no-fault divorce’ and to meet such ends, Family Law Act, 1996 was introduced in the country.

The problematic aspect of Divorce law in England and Wales

Divorce cases normally go undefended and uncontested in England and Wales. According to a study, it has been seen that only 1% of the divorce cases in the United Kingdom are defended i.e., the other party rarely files a written objection in a divorce case in UK. Also, it has been observed that in England and Wales, more than 60% of the divorce cases are filed on the basis of adultery or unreasonable behaviour, which is said to be 10 times more than any other European countries.

The main problematic aspects of divorce law in England and Wales are as follows:

1. The restrictive aspect of having only five grounds to provide that the marriage has been broken down completely. As it has been proved in the case of Buffery v Buffery, if none of the provisions are complied with, a divorce is not granted in England and wales.

2. Mos of the divorce cases in England and Wales go undefended and uncontested and the courts often take the oral evidence of the petitioner before granting a divorce on the grounds mentioned under the Matrimonial Causes Act, 1975.

3. The law might be reformed but the practicality of such reform is questioned and the judicial system of the country often tries to protect the sanctity of marriage and it becomes the duty of the petitioner to go to a long length in order to prove for a valid divorce ground especially if she does not have a perfect valid ground of divorce as has been mentioned under the Act herein.

4. The non-recognition of the no-fault divorce. Divorces are essentially to be categorized under the faults and unless and until the faults of either of the parties of a marriage has been proven, a divorce shall not be granted by the court whatsoever.

The case of Owen V. Owen and the reforms of Divorce Afterwards

In the year of 2018, Owen v. Owen, became one of the most essential an important case of England and Wales where the true picture of the Judicial system came forward and it is one of the contested divorce cases that went to Supreme Court of the country in order to produce a controversial judgement. In the given case, the husband contested the claims of the wife against his unreasonable behaviour and the lower courts of the country found that the husband’s behaviours cannot be marked as unreasonable as per the statue of the Acts of the England and Wales and hence the divorce cannot be granted as there are not enough grounds for the wife to prove that the Husband has done anything unreasonable herein. When the case was dragged to Supreme Court, the Supreme Court of the country was of the same view as well and stated that the divorce cannot be granted as it shall go against the law of the land. However, the way of interpretation could be different and the Supreme Court was of the view that the marriage could be granted a divorce under the concept of contested separation where the wife has to wait for 5 years before she can obtain the decree of divorce against the husband.

How courts of England and Wales are inadequate at handling the divorces of the country?

As it has been mentioned earlier, the problem with the divorce cases of the country is enormous and it has various little details which often goes unnoticed. One of such problems is that most of the cases of UK goes undefended and there are very few divorce cases which are defended. In the case of Rae v Rae, it was reported to be rarest of the cases in the recent times that went contested by the Husband and the fight went into great details herein.

Also, in the case of Savva v Savva and Lindner v Rawlins, it was considered by the court of law that these are the very few contested matters that has been recognised by the courts of England and Wales herein. Again, in the case of Hadjimilitis (Tsavliris) v Tsavliris, the irretrievable break down of marriage was examined thoroughly by the court as the case was contested.

However, these are very few cases that has been reported by the courts of England and Wales which have been contested by the parties herein. From various researches, it has been seen that most of the cases go unnoticed by the respondent and the evidences are not hard core proved by the petitioner as well. In most of the cases, the respondent never shows up due to the clauses of financial liabilities herein and the case almost goes in favour of the petitioner as it has been stated herein.

Thus, the question remains – are the courts of England and Wales too narrow in perspective to have granted divorce so fast or are they too strict to have only a very few provisions in hand which can be seen in the case of Owen v. Owen herein? Either way, from various cases such as Bradley v. Bradley, Bannister v Bannister or in O'Neill v. O'Neill where divorces were granted in the favour of the petitioner as the petitioner or the wife often claimed her husband to have unreasonable behaviour herein. Also, in these cases, it has been seen that the case of granting divorce often goes in the favour of the women of the case i.e. the wife and for the purpose of protecting the child in the marriage, under the Children Act, 1989, the mother is often granted with the custody of the child even though the wife is at fault herein.

Critical Analysis as to why the Divorce law are still inadequate in England and Wales in the 21st Century?

Even though recently in the year of 2020, the new Divorce Reform Act has been introduced in the States of England and Wales and the concept of no fault divorce has been instituted under the statues as well, it still seems to be a distant dream for England and Wales to adapt to a statue that adequately protects and affirms to the institution of marriage herein.

From the abovementioned discussion, it can be critically analysed that that most of the divorce cases of UK go uncontested or undefended and such huge percentage shows how the family courts of the country only grant and decides the cases of divorce on the face value or the oral evidence herein and no hard-core evidence is needed by the courts as the court seems it to be sensitive herein. However, such perception has only given the court with the petitioner as the defendants are afraid of showing their faces and file an objection against the petitioner in the fear of losing his money or the custody of the child or getting a permanent restraining order as well. Even in the cases, where the defendant protested against the petitioner and filed objection herein, the court has always favoured the petitioner and supported her testimony and declined the objections of the husband.

Hence, if we critically analyse the situation, it can be seen that the concept that the women in the marriage can do no wrong or providing women with more protection that it needs, has created a biased environment in the courts of England and Wales and it has provided the defendant with the feeling of having no legal provision at all. In this way, the court has necessarily failed at protecting the institution of marriage herein. Take a deeper dive into Family Law Matters with our additional resources.

Conclusion

Hence, it can be said that the concept of marriage might still have the notion of a sacred bond but the court has often failed to protect the basics of it and grants the decree of divorce without providing enough justification to resist the same herein. It is true that the law of the divorce in UK are changing slowly with the new Divorce, Dissolution and Separation Act of 2020 which is to be enforced in the year of 2021, the laws are still inadequate at protecting the institution of marriage within and the defendants are more and more afraid to show up before the court of law.

BIBLIOGRAPHY

Journals

FREEMAN, M.D.A. “Marriage and Divorce in England.” (1995). Family Law Quarterly, vol. 29, no. 3, pp. 549–566

Books

Trinder, Liz. Braybrook, Debbie. Bryson, Caroline. & Coleman Lester. “Finding Fault? Divorce Law and Practice in England and Wales” (2017) Nuffield Foundation

Davis, Gwynn and Murch, Mervyn. Grounds for Divorce (1988) Clarendon, Oxford University Press

Case laws

Buffery v Buffery [1988] F.C.R. 465

Bradley v. Bradley, 190 Wn. 123

Bannister v Bannister [1948] 2 All ER 133

Gollins v Gollins [1964] A.C. 644

Hadjimilitis (Tsavliris) v Tsavliris [2002] All ER (D) 32 (Jul)

Lindner v Rawlins [2015] EWCA Civ 61

Owen v. Owen, [2018] UKSC 41

O'Neill v. O'Neill, 264 A.D.2d 766

Rae v Rae [2012] EWCA Civ 541

Savva v Savva [2012] EWCA Civ 579