General seems go the other way rund when put

General princeiple of law on divorce are set out in s1  of the family act 1996. (a) supporting the
instituiom of marriage (b) saving marriages (c) limiting emotional harm (d)
promoting on going relationship (e) avoiding expenses (f) protection from violence
(g) dealing with emotional issues. In this question we wiil examine whether the
law on divorce is still serve the purpose in current society. We can see the
current law on divorce is dictated by Wilson J in the case of Bhaiji v Chauhun1

In
2003, Wilson J stated that: “In England and Wales divorce is not yet simply
available upon joint demand immediately following a separation” 2
. However this statement seems go the other way rund when put it in practice.
In reality many spouses achieve a divorce because they both wish it. Although
they may go through a series of bizarre situation to achieve it.

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Before 1973, the petitioner need to submit the evidence to
support the grounds in the open court. This was expensive, embarrassing,
stressful and a lengthy hearing. A special procedure was introduced by 1977
covered all the divorce where the petition made was undefended. The ground for
divorce is set out in Matrimonial Causes Act 1973 that the marriage has break down. The break down must be
prove in one of the 5 key facts in s1(2). (a) adultery (b)respondent’s
behaviour (c)respondent’s desertion (d)separation (e)five years separation. This
has led to a common, but understandable, erroneous belief that the facts are
the grounds for divorce. For achieving the petitioner’s aim, he/she will try at
least to fulfil one of the grounds for divorce, even made up some stories with
a little imagination and in some cases, money. For the reason that the divorce
is primarily an administrative one, therefore it is rarely for the judge to
challenge a petition unless a fraud is suspected.3

It
can be seen that there are three of the five facts require the petitioner to
accuse her spouse of a ‘matrimonial offence’. It is worth to note that the
fault based facts make a divorce take shorter time. Occasionally spouses have
made totally bogus claims.4

Adultery, petitioner couldn’t live any longer with the respondent’s
committed adultery. However there is few points should be strees out. First,
petitioner could not rely on his/her own adultery act. Second, sexual
intercourse not amount to people of the opposite sex. Third, it is not enough
just to show the respondent comiterd adultery but petiotioner also have to
prove thwat he/she cannot tolerate to the act. Fourth, the petitioner no need
to show the reason why he/she could not live with the adultery as shown in the
case of Cleary v Cleary5.
In relation to intolerability it is a subjective standadrd, important point
should be made that if the petition can live with that adultery as illustrated
in Goodrich v Goodrich6.
If the petitioner could live with the act for 6 months then she could not rely
on adultery anymore, unless the adultery act is repeated. If the
parlieament had legalised the marriage between same-sex marriage then the
adultery fact have to be abandoned, For the reason that it is hardly possible
that a differential standard could be applied to same and opposite se of
marriage.

Reasonable
behaviour, it must be a behaviour that the
petitioner could not reasonably live together with it as shown in the case of
Birch v Birch7.
The conduct of parties will be take into account by the court to verified
whther it amount to unreaasonabe behaviour. It is possible to rely on a series
of incidents but the problem with this should be if the petitioner could not
remember some of the incidents. Ruth Deech suggests it is ‘very easy’ to rely
on the behaviour ground.8
The Law Commission has acknowledged that ‘virtually any spouse can assemble a
list of events which, taken out of context, can be presented as unreasonable
behaviour sufficient to found a divorce petition.9
The reasonable behaviour can be defined in a wide range of act thru the case of
O’neil v O’neil and Lines v Lines. ‘sex chats’ in Facebook is amount to one of
the five divorces claimed by one of the journalist. Practically, it can be understand that this fact is
so popular to be used in petition. The nature for spouses to live together may
gibe rise to behaviour which is irritating. Therefore, there is highly likely
that two human being staying together can point out the behaviour that they
couldn’t withstand it. The relying on this fact give rise to the spouses to
search through the dirty linen basket and parade one or more of its content.
This act may avoid a spouse to habe a civilised end to a relationship or bring
cooperation in raise their children till adult age. OPPOSITION
😕

Desertion, the respondent have deserted the petiotionere right away
for continous at least two years ttime after the petition10.
This fact is very hard to prove. In order to success in this there are four
points to look into. (i) de facto separation between the spouses. It is
possible for desertion to occur with both living under the same roof but in two
household rather than one.11
(ii) ‘animus deserendi’, an intention to remain separated with the other.12
There is not an intention if the other went out from the matrimonial house for
other purpose for example, ill, business trip, imprisonment or etc. (iii) there
is no desertion if the separation is by consent.13
(iv) if one someone have a reosanble excuse to leave the other partner the
he/she is not in desertion. As shown in quoraishi v quoraishi14,
when a Muslim man decide to take his second wife by ignoring the will of first
wife the court held that the first wife had a reasonable cause to leave him and
was not in desertion. Where a respondent who had
the intention to desert but prior to the elapse of the two year period becomes
mentally incapable of continuing with that intention, at the end of the two
year period, he may be deemed to have held the intention for the requisite
period of time. 15

Separation
with consent, if petitioner can prove there has been
two years separation immediately and the respondent agreed to the petition.
Then, a divorce can be granted. This can also be proved if the spouses live in
the same household but living individually as shown in Hollens v Hollens16,
the judge ruled that they were living apart. In Santos v Santos17,
the Court of Appeal explained that not only the parties must lived separately
but there must also a wish by one spouse to live separately.

Five years
separation, the petitioneer can rely on the face
that they separate for five years duration prior to the petition. Opponets
called the section a ‘Casanova’s charter’, although with a five-year wait
between marriages, a Casanova would require patience!18
However there is defences to the petition provided by s.5 of Matrimoniial
Causes Act 1973 for the respondent who did not want to go throught the divorce.
Viljeon J in O v O(Jurisdiction: Jewish divorce )19
also suggested that court had the power to delay making absolute derecee nisi
if there were special reason to do so. However there are no fix definition for
the special reason.  In reality, no
matter what age of the child, unless either spouse has applied for an order,
the court is unlikely decide on its own.

As seen above, the five facts is hard and take a long time to
prove. Even for the five years separation the respondent still have a way to
defence it. Next we will look into the problems of the present law.

Outdated divorce
law is causing needlessly painful and destructive breakups and exacerbating
conflict between
couples, a major new study has found.20 In
1990 a Law Commission report set out six problems with fault-based divorce,
including that the law was confusing and misleading, discriminatory and unjust,
distorted bargaining positions, provoked unnecessary hostility, made things
worse for children by exacerbating parental conflict whilst at the same time
doing nothing to save marriages21

the
problem of the present law can be found in the reform of matrimonial causes act
1973 by Booth Committee Report in 1985. The report argued that defended
divorcess led to increased bitterness and dissapoinment.22 Subsequently., Law Commission Report 1223
suggested reforms of the divorce law.  we
will now look into the criticism.

The
present law is confusing and misleading, the fact that although irretrievable
breakdown is stated to be the grounds for all divorces but in reality that it
is insufficient to show only the marriage is irretrievably broken down as one
of the five facts have to proved. At most of the time parties will start to
create fake story just to fulfil the cause of the marital breakdown.  In Mears24,
argued that this is not confusing because there are expertise lawyers on this
area will explain the position of law to the clients. As Mears points out, this
is not an area of law which public complains about the grounds of it being
impenetrable.25 Secondly the law stated
in statute is different as in practice, the court has used their discretion too
much. This can be seen in the case of Kim v Morris26
and many other cases. This cause the law of divorce too flexible which also
cause to confusion for the people. The President of the Famiily Division Sir
James MUnby has admitted: ‘the reality is that we have had divorce by consent
for 30 years’27 yet that is not what thw
law on stature book says.

It is
discriminatory and unjust. The Law Commission comment that the ground for two
years separation is not available for those who still could not find or afford
a second accommodation. Those who fall under this category must use one of the
fault-based grounds or wait for five years. On the other hand Mears28
suggest that this is an unfair criticism because the only discrimination is against
those who are unable to prove the ground of divorce29.however
the validity of Mears’s argument depends whether ther petition have a good
excuse to separate, if there is not the Law Commision’s argument stand.

It
distorts the parties bargaining positions. This concerns to the situation when
one of the parties want the divorce immediately but the another parties want
for a delay. As we can see in the two years separation the party have to do it
with consent, either way this gives the parties who willing to delay as a
weapon to rebagaining his/her position. if this circumstances has happened then
the parties have to go for the 5 years separation which make the party who want
a divorce immediately feels very frustrating. One the other hand for those who
seek for a counter argument would said that the non-consenting spouse only has  threathening position if the other party could
not prove one of the grounds and if so the non-consenting is act within his/her
own rights.

It
provokes unnecessary hostility and bitterness. The system left the parties to
use the faulty of the other parties because they want so much to divorce. This
can create distress, bitterness, and embartassment in the making of that
allegation as the allegations are made in public document. The present law
requires parties to look back to the past and find the bad aspects, this might
destroy the last home of reconciliation of the spouse. On the other hand for
the supporters of present law would argue that the distress and bitterness are
one of the process that should be in divorce.

The
present law des nothing to save the marriage. The only provisions specifically
design to help to reconciliation the arriage is s6 of Matrimonial Cause Act
1973. S.6(1) states that the solicitor is required to certified whether or not
the possibility of a reconciliation has been discussed.30 The
provison itself is good but the main problem about this is that there are still
many peope did not instruct a solicitor. It is notable that in one survey only
53% of those divorcing were sure that divorce was what they wanted.31

Lastly,
it make things worse for the children. The current law did not try to reduce
conflict, but indeed it add on the conflict between parties by digging out the
past to find the bad aspects. However, in a recent studie 30% of those
questioned though it should be harder for couples with children to divorce; ony
38% disagreed with that view.32

 

 

The recent Owens v Owens divorce case demonstrated the
inadequacy of the law whereby a wife barred from being granted a divorce.

In owens
v owens, the couple married was married in 1978 and have two children. The wife
petitioned for divorce on the ground that the marriage was broken irretrievably
and under s1(2)b of the Matrimonial Causes Act 1973 that the husband behaved in
such unreasonable way. The husband did not satisfy the application. The wife
appealed under the ground that the judge failed to (1) apply the law; (2) make
essential core findings about what the husband had done; (3) assess the
cumulative impact of the husband’s conduct; (4) honour her rights under ECHR
art.8 and art.12.However, the court then dismissed the wife appealed.

The
critcsm contain in Law Commission report persuaded the Government, and
Parliament decided to reform by using Family Law Act 1996. After a long
discussion and research (pilot studies) in the country. It had decided not to
implement the Family Law Act 1996 and Part II of the Act(which deals with the
divorce procedure).33 the
problems in the Family Law Act 1996 will be points over how the divorce law
should be reformed in the future. There is a timetable for divorce procedures.
This timetable are set out for the MAIN purpose of divorce which tried not to
delay the divorce. In owens v owens34,
had demonstrated a typical type of divorce, and the court find tha the wife
cannot ivorce just because there is no faluty based between them. This case
left society a question on what the purpose the court still serving while
keeping a spouse that have one party is not 
willing to stay together.Resolution
has arranged all party events at Parliament setting out the considerable
disadvantages of “fault” divorce, unreasonable behaviour and adultery.35

 The
information meetings were seem too rigid; spouses needed an information
meeting appropriate to their own particular situation. There was also lack of professional  mediator. There are two lessons for future
law reform to be learned . first, no two divorces are the same. The information
that one couple may require to guide them through their divorce may be quite
irrelevant for another divorcing couple.36
 Secondly, the divorcing couple not
preferd to be lectured but more look towards  for a discussion.

 

 

 

 

 

 This Act also served the purpose of no-fault
divorce.  However there are some bad
aspects and difficulties can be found in pilot studies will now be considered
in further detail.

 

 

 

 

 

Despite failed attempts at reform, including the excellent Family Law Act 1996, which tried to get rid of fault-based
divorce, such proceedings are still forced through an outdated,
conduct-based system, which attributes blame for marital breakdown.

1

2
Bhaiji v Chauhun 2003 2 FLR 485, at para 20.

3See
eg Bhaji v Chauhan above n 3, where the judge became aware that the marriages
had been entered into for immigration reasons and once visas had been obtained,
petitions were brought to end the marriages.

4
Ibid, at para 20 where the judge said: “This unusual hearing has exposed a
concerted attempt to bypass the requirements of the present law and by the use
of bogus allegations of behaviour to secure the immediate dissolution of
marriages which have outlived their perceived usefulness”

5
Cleary v Cleary1974 1 All ER 498

6
Goodrich v Goodrich 1971 2 All ER 1340

7
Birch v Birch 1992 1 FLR 564, 1992 2 FCR 564

8
Deech (2009b)

9 Law
Commission Report 192 (1990)

10
Matrimonial Causes Act 1973 s.1(2)(c)

11
Hopes v Hopes 1949 P.227,331

12 Perry
v Perry 1963 3 All E.R. 766

13
Pardy v Pardy1939 P. 288

14 

15 Matrimonial
Causes Act 1973, s 2(4).

16
Hollens v Hollens

17
Santos v Santos 1972 1 All ER 289

18
Family law , Jonathan Herring

19 O v O(Jurisdiction: Jewish divorce )19

20 https://phys.org/news/2017-04-outdated-uk-divorce-law-needlessly.html

21 https://www.premier.org.uk/News/UK/Christian-charity-agrees-divorce-laws-are-outdated

22
Booth Committe Rreport 1985

23
Law commission Report 192

24
Mears

25
Ibid

26
Kim v Morris

27
Quoted in Baksi(2014)

28
Mears

29
Ibid

30
MCA 1973, s6(1)

31
Newcastle Centre for Family Studies (2004)

32
National Centre for Social Research (2008)

33
Lord Chancellor’s Department.

34

35 https://www.newlawjournal.co.uk/content/unreasonable-behaviour

36
Arnold(2000. Interestingly, only 66 percent of women who said that in theory
information about violence was relevant to them found the information provided
useful: Bridge (2000: 546), although it should be noted tha there are concerns
that victims of domestic violence may be reluctant to describe themselves as
such: Richards and Stark (2000)

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