Requirement for a Quick Divorce - Essay Example

Legal Advice Ms Susan The Law firm of In the matter of: Your enquiry about obtaining a divorce from your husband. Ma’am: In the matterof seeking divorce from your husband, we will need to invoke the provisions of the Family Law of 1996 and the Matrimonial causes Act of 1973. However, at the outset, it must be stated that adultery is the strongest grounds for obtaining a divorce and has been recognized right from the time divorce was first legalized through the 1857 Matrimonial Causes Act, in order to provide relief for an innocent party whose spouse had committed adultery.1 Therefore, filing suit on grounds of adultery would result in an almost certain victorious outcome. However, since you have specifically stated that this is not an option you would wish to consider, other provisions and grounds are presented below, which will arise under the Family Law Act. According to Cretney, the Family Law Act of 1996 has replaced previously existing statutes with “a consistent set of remedies available in the Courts having jurisdiction in family matters.”2 Also, the provisions of the Divorce Reform Act of 1969 have ushered in a new stage in divorce litigation because it has helped to eliminate the element of guilt of one particular party that needed to be proved and has instead made irretrievable breakdown as the sole ground for divorce. In establishing that such irretrievable breakdown has taken place, one of the parties must make a statement that they believe the marriage has broken down. But a divorce cannot be instantly granted, because once the statement has been filed, a period of nine months starting from the fourteenth day after the filing of the statement, is required to elapse. This is a mandatory period of reflection that is required during which the other party will also be provided with the statement, in order to provide some time for reflection and reconciliation if possible.3 As stated in a report on divorce prepared by the Law Commission, good divorce law seeks to “buttress rather than undermine the stability of marriage” and where it has irretrievably broken down, “to enable the empty legal shell to be destroyed with the maximum of fairness.”4 The important aspect that needs to be considered is that the removal of the fault aspects of divorce is not necessarily an advantage, because it makes the process of securing a divorce harder, since the process takes more time with mandatory reflection required to provide an opportunity to save the marriage.5 This emphasis on careful thought and the waiting period are in the same spirit as propounded by Owen in reforming divorce law6, i.e, filing a divorce petition only when twelve months have elapsed from the marriage and a further period of six months before the divorce could be effected, all of which arises in contravention of securing a quick and fast divorce. Therefore despite your belief that the marriage has irretrievably broken down, it may be necessary to wait out the nine month period required under the Act before divorce proceedings will bear fruit. The statement that is made about one party’s opinion that the marriage has broken down irretrievably must be proved through one of the following five facts: (a) adultery (b) unreasonable behavior of the other party – this would also include making excessive sexual demands, neglect, intimate association with another party or keeping the other party unreasonably short of money (c) desertion by the other party (d) Living apart for five years, however living apart for two years is sufficient if the other party is prepared to consent to the divorce.7 While earlier one of these grounds had to be proved and there was a formal hearing before a Judge, Lord Justice Thorpe points out how this has evolved into a quasi judicial process where you would need to fill out a form which will not be too closely scrutinized, however it is vital that arrangements regarding children and the division of matrimonial assets will have to be made upfront.8 Therefore, applying the above and excluding adultery as a ground for divorce, the possible grounds that could be cited in your case would include unreasonable behavior such as excessive sexual demands and keeping you unreasonably short of money. In fact, this is the grounds utilized in 80% of divorces9. Other issues that must be considered before filing for divorce are the question of financial provisions on divorce. This is especially relevant in your case because there is evidence available in England and Wales that divorce creates poverty for women.10 Financial orders would be issued after the divorce, in the interest of fairness to both parties, however whether such arrangements would be fair in practice has been questioned by experts.11 Moreover, there is also the question of the children, whose primary responsibility is likely to come upon the woman. This is one aspect on which preliminary arrangements must be discussed with your husband, as also the question of how matrimonial assets will be divided. Therefore, in addressing your requirement for a quick divorce, it does not appear at the outset that divorce can be obtained so quickly and it may be necessary to wait out the specified period after filing the necessary forms. However, the advantage is that since the system has been changed to a no fault one, the scrutiny will not be so rigorous. The best grounds for filing for a divorce in this case would be adultery, because it could ensure a successful outcome. However, barring adultery, the best recommended grounds for filing for divorce are that of unreasonable behavior. Excessive sexual demands and keeping you short of money as also your husband’s failure to take interest in his children could also construe as good grounds under the unreasonable behavior criterion. It also appears possible that your husband may be required to make some financial provision for Pauline, since she would be classed as being in a cohabiting relationship with him, living in the same house12. These financial issues must be taken into consideration and arrangements regarding children and financial assets must be specified in the papers to be filed for the divorce. Yours truly, Legal Associate Bibliography Legislation: * Divorce reform Act of 1969 * Family Act of 1996, Part II, section 7(3) [online] available at: http://www.opsi.gov.uk/acts/acts1996/b1996027.htm#2. * Section 1(2) of the Matrimonial Causes Act of 1973 Books/Journal Articles: * Cretney, S.M., 1992. “Elements of Family Law” Sweet and Maxwell at pp 30 * Cretney, S, 2003. “Family Law in the Twentieth Century” Oxford: Oxford University Press at pp 7 * Herring, Jonathan, 2005. “Why financial orders on divorce should be unfair.” International Journal of Law, Policy and the Family, 19 (218) * Langdon-Down, Grania, 2006. “Divorce law reform: doing the splits.” Law Society Gazette, 103.38 (20) * Lowe and Douglas “Bromley’s Family Law” (9th edn) (1988) at pp 50-52. * Reece, Helen, 2003. “Divorcing responsibly” Oxford: Hart Publishing at pp 146 * “Reform on the Grounds of Divorce: The Field of Choice.” Law Commission report no: 6 (1966) * Taylor, B, 1983. “Eve and the new Jerusalem” London: Virago at pp 53 Read More