The Nature of Divorce Law in England and Wales - Dissertation Example

?The Nature of Divorce Law in England and Wales Brief history of Divorce before the Matrimonial Act In England and Wales, the major fault of divorce since the traditional days was that it was only given to men prior to the enactment of the matrimonial act. In these countries, only men could openly file for divorce and get the chance of having it implemented. It could only be awarded through acts of their respective parliaments, which made the process very costly and affordable to only men.1 This implied that the proceedings of a divorce were only instigated by the wealthy men who could afford to pay for the proceedings. For example, in the time of King Henry VIII, he was awarded a divorce through a church court led by the Canterbury Archbishop. At around this time and in the following years, the church courts reserved the rights and powers of dissolving marriages and only favored men in their rulings. The governing bodies that were in charge of divorce before the enactment of the matrimonial act were the courts of Arches along with the Church of England’s cannon law. The law on divorce was not implemented by the common court barristers but by advocates practicing civilian laws thereby adding to the anonymity of this process.2The civilian laws used were faulty and did not guarantee women their required rights in marriage. The issue of divorce was reserved for the rich men who could manage to finance private bills or ensure the enforcement of an annulment process that was very complex to work through. A couple’s marital issues were discussed in public courts with the proceedings being carried out in the common’s house. Lord Aberdeen proposed several bills that would create civilian courts to help in regulating this issue among couples but achieved no success in his efforts. This system was heavily criticized since it gave a wealthy man’s personal issues priority over national matters.3 The bills raised for the purposes of regulating divorce usually achieved stiff resistance from many legislators who perceived the formation of such courts as violations of their church’s power. The matrimonial act was finally put into force on 1 January in the year 1858.4 Development of the Current Divorce Law in England and Wales The first legislation on divorce in England and Wales came about in the year 1857 through the enactment of the act on matrimonial causes. It dealt with the former laws practices of discrimination against women. The act was passed by the country’s parliament and it brought reforms in the areas of divorce where many faults were previously witnessed . This is because the act later shifted the power of instigating a divorce from the church to civilian courts. The act also stipulated that a husband would be granted a divorce against his spouse only if he could prove her adultery.5 It assured wives throughout England and Wales of their ability of achieving a divorce against their husbands. It provided that a woman could prove her husband’s infidelity along with instances of cruelty, incest or desertions during their marriage. The acts fault was that it enabled the creation of marriages that resembled contracts than sacraments. It also facilitated the occurrences of divorces to the poor people and faulted the previously used laws which did not .6 Divorces in both countries had previously been reserved for the privileged and wealthy people. This act further enabled the creation of a divorce court which dealt with causes of matrimonial problems. It provided these courts with the power of hearing and deciding civilian actions concerning the issue of divorce which were only previously heard in the commons house. 7 The courts were first placed under the supervision of Sir Cresswell who was very successful in establishing their authority, self-esteem along with their efficiencies. These provisions were not present in the past legislations. The enactment and implantation of this act enabled a growth in the number of the petitions on divorce that were being heard in the courts also unlike in the past. For example, the number of petitions that were brought before it in the year following its enactment increased tremendously. There were three hundred petitions on divorce by couples as compared to the previous year where only three cases were heard.8 The matrimonial legislation of 1857 did not have any amendments done on it until in the 19th century which added to its faults. Various parties including the catholic church of Rome, England’s church along with the mother’s unions in England and Wales greatly advocated for the liberalization of the divorce law of 1857.9 This piece of legislation was greatly faulted since it only eased the men’s chances of divorcing their spouses. This is because they were only required to divorce their women by proving they had committed adultery. Their women on the other hand had to prove cases of incest, desertion along with cruelty for the proceedings to be instigated for them. This brought about the creation of a Royal commission in the year 1912, which recommended that the divorce process should be liberalized.10 In the year 1923, a female friendly union of societies that was involved in advocating for equal citizenships, also approved the issue of liberalizing the proceedings which they viewed as faulty. The origin of this amendment came through an author called A.P. Herbert who raised the public’s opinion through his works on the issue. He was elected as the parliamentary representative for Oxford, which gave him the opportunity of privately presenting a bill in the country’s legislative body. Through the support of Rupert Bere, Evesham’s MP, the bill was able to pass all the required readings and obtained the houses approval before being signed into law by Stanley Baldwin, the then prime minister. The changes in the law allowed for divorces to be granted on additional grounds such as insanity, drunkenness and mental breakdowns or illnesses.11This was previously not the case since the past legislations imposed many restrictions on the proceedings. In the year 1969, a big alteration occurred with the act aiming at reforming the faulty divorce proceedings in both countries. The passing of this reform law facilitated the issue of divorce occurring among couples who had only previously separated for a period of two to five years. It suggested that marriages could be broken if one of the married partners could prove the faults in their relationship. It provided for divorce when marriage relations worsened with neither partners seeing the faults.12 It is the amended version of the act on matrimony of 1973 that is currently being applied in both Wales and England. The current law only advocates for a sole reason of instigating a divorce, which happens if a marriage has irretrievably broken down. The courts in charge of enforcing the divorce have to certify certain facts before granting the divorce, which did not happen in the past. These facts include adultery of one’s spouse, unreasonable behaviors, desertions of more than two years and the living apart from each other for a period of two or more years. When the parties to a divorce have lived apart for more than five years, then the courts do not need to obtain the consent of one party before instigating the proceedings for divorce. However, the courts require the consent of a spouse when his partner is seeking a divorce and they have been living apart for a period of two years and below. Proceedings on finances and children in the divorce cases are all run separately. This provisions were previously not availed in the past legislations which made them faulty. The current divorce legislations do not advocate for divorces during the first year of a couple’s marriage.13 The current law in England and Wales regarding the issue of divorce classifies it as a clean administrative act, which requires the consent of both parties for it to be applicable. In the past, only the consent of their men was required thus making the laws faulty since the men could easily abuse them. The current law being applied in both countries also emphasizes on the need of resolving issues concerning a couple’s children and assets before the issuance of the final decrees. It also provides for any partner in a marriage to instigate the proceedings for the dissolution of a marriage as long as a person has been domiciled or is a resident of the countries for a year. This eligibility check occurs before the courts accept the application for the divorce proceedings in a marriage. The courts dissolving a marriage are required to evaluate the evidences brought before them to help in accurately making appropriate decisions. These types of cases normally run for a period of four to six months but mostly depend on the facts and evidence presented by the different participating parties.14In the previous laws, none of these provisions had been availed and this made them faulty since they were biased against women. Outline of Matrimonial Causes Act (MCA) The matrimonial causes act of England and Wales originally came along in the year 1857. This act came about due to the problems couples were facing in their marriages and the faults in previous legislations. They only allowed men to instigate divorce proceedings against their wives on the grounds of adultery. It was however expensive since it required their parliament’s approval before decisions were reached. It was additionally enforced by councils that were formed by the church. After several consultations between various groups advocating for the amendment of the law in the year 1923, the courts faced the pressure of accepting the idea of women filing for divorces. They did not however give in to the pressure until the year 1937, when the amendment was passed in their parliament to correct the faults stated above. The amendment act of 1937 allowed for various different provisions granting permission for a divorce to proceed.15 This legislation allowed for divorce only on the ground of irreversible breakdowns in marriage unlike in the past where adultery was the main basis for instigating one. The legislation currently governing divorce in England and Wales only allows for divorce on grounds of adultery, unreasonable behaviors and desertion. It also allows for divorce when marriage partners have been separated for two years with their consent or their separation for a period of five years and above without each other’s consent. The MCA is an act that aims at consolidating the law that relates to marriage proceedings, agreements on maintenance among couples, validation of marriages among citizens of English or welsh nationalities. The previous laws were faulty since they did not cover these issues. This law provides guidelines on various issues that range from breakdowns in marriages that lead to divorce, provisions supplementing presumptions of marriage breakdowns, petition bars within a couple’s first year in marriage and the preclusion of divorces by judicial separations previously approved.16 It also provides for the denial of rulings in separation suits based on the hardships the respondents go through along with any reconciliation attempts between the parties involved in the marriage. The MCA allows for interventions of the queen’s proctor and offers the courts general powers. The law corrects the previous law faults in their allocation of judicial powers to the commons house. It stipulates the basis for which a marriage may be declared void or voidable. The marriages that are ruled by foreign legislations but recognized under the English and welsh laws are also defined along with the conditions under which a marriage can be dissolved or presumed to be dead.17This law may greatly contravene on many foreign laws which govern sovereign states with their own liberties. The MCA stipulates that a marriage may only be forwarded to a court of law for divorce reasons if it has irretrievably broken down. This condition may occur due to the adulterous acts of one partner which are proven beyond doubt by the other, behaves in a way that is not reasonable or deserts his or her partner. This provisions have been deemed to be faulty since they are not the only reasons divorce proceedings can be instigated. There should also be willingness between both marriage parties to enforce the divorce proceedings. A partner in marriage is exempted by the law from being divorced in cases where the couples have peacefully coexisted for a period of more than six months after an adulterous act has been committed by either party. Exemptions on a partner’s behavior apply when the partners in a marriage have lived together for a period longer than six months. This is usually after the last incident that the applicant for the divorce proceedings relies on as his or her evidence.18 However, an applicant is seen as having the inability to live with such a partner if the actions are committed in a period of less than six months. In dealing with the issue of desertions during a marriage, the law does not consider periods of less than six months that one accused partner resumed living with his or her spouse during the period of desertion in question.19 All this provisions were also not previously covered by the past legislations. The law’s fault is that it also bars petitions for divorce cases from being presented in courts of law prior to the ending of a year since the marriage took place. It does not also stop the petitions made for divorce in cases that had previously been ruled fit for separation among the parties by a court of law. This is so long as the facts presented in the previous case are the same as those being given in the divorce suit. The issuing of rulings is also constrained by the law, which suggests that evidence must be provided by a petitioner for proving his or her grounds for the divorce. A respondent in a divorce case is entitled to refuse a divorce being instituted against him due to the financial hardship he or she may encounter after the enforcement of the divorce. He or she is required under the law to justify how the suffering will be encountered to declare the divorce wrong.20 The act requires that the possibility of reconciliation must have been explored and several professionals and witnesses have approved that the marriage is beyond repair. This is also seen as being faulty since it could take a long amount of time to prove it. The law is seen as faulty since has the ability of adjourning proceedings in instances where there are chances of reconciliation between the partners in a marriage. This is usually carried out for the period that the authorities stipulate the relationship will be able to work well.21 Agreement or arrangements made under the marriage act prior to marriage, which are applicable to divorce proceedings brought in a court by any marriage partner, are considered in the rulings in divorce cases. Either party to a marriage has the right under the law of requesting that the ruling on divorce should not be made absolute. This is done because they have more substantial evidence that has not been brought to a court. This evidence should be provided so that the courts can rescind their previous decisions, recommend further investigations to be carried out or handle the case as it would deem fit.22 The parties to a divorce proceeding may be able to file an appeal against a decree on divorce if an application for it to be made absolute has not been done three months after a court’s decree.23 The law provides that divorce proceedings can proceed after a ruling for a divorce has been given but has not been made absolute. This occurs in situations where the parties involved in the marriage are either of Jewish origin or their marriage used other prescribed religions in English and Welsh law.24 Finally, the act provides conditions under which a marriage should be made void. It states that a marriage is void if it does not comply to the marriage act provisions that were laid down between the years 1949 and 1986. The conditions include a marriage being in the prohibited levels of a relationship or either marriage partner is below the age of sixteen years. It could also occur if the parties to a marriage have infringed on various requirements of the marriage law or in case either partner was legally married to another person prior to their current marriage. The law was seen to be faulty since it did not provide for marriage between gays and lesbians until recently when it was amended to accommodate them.25 Marriage under the act on marriage causes can also be said to be voidable in cases where the petitioner had been given prior information and an open chance to avoid entering into the marriage. This should have been done in a way that would have convinced the other partner in marriage that a divorce would not have been forthcoming. The law’s fault is that it also stipulates that a divorce can be voidable when it is seen that justice will not prevail because of the divorce ruling being made.26 This is because the law may go against the marriage party’s wishes. The law provides that foreign marriages that are applicable in England and Wales are treated as having occurred under their common law. It provides that any of these marriages will be treated as void or voidable under their law with divorces being awarded on the same grounds as those under common law. This is seen as making the law faulty since it could infringe on other foreign laws which one of the partner adheres to. The marriage act suggests that any partner who makes allegations based on very reasonable bases that their spouses are dead are usually entitled to obtaining a divorce and having their marriages dissolved.27 This divorce is given after a petitioner has successfully proven the absence of the spouse for a continuous period of more than seven years. This provision is viewed as being faulty since it does not guarantee a missing partner is dead. The law provides that the children and parties to the divorce proceedings are supported in accomplishing their different needs. It also provides for the sharing of pensions among aged couples who have decided to indulge in divorce proceedings with the aim of going their different ways.28 The sharing of property owned by the marriage partners is governed by the act, which stipulates on the methods of transfer, ownership and maintenance to be provided. The property could also be disposed with the proceedings being shared according to the interests of each of the parties in the marriage on the property.29Previous laws were viewed as being faulty because they did not guarantee children and wives their rights after divorce. Theory versus Practice of the Law The divorce law exercised in both England and Wales suggests that divorce is normally granted mainly due to adultery of a partner, desertion and unreasonable behaviors. In both countries, the rates of divorce indicate that the reason why most divorces happen is unreasonable behaviors. The acts of adultery and unreasonable behaviors among the married couples have led to the granting of quick divorces among the citizens of both countries. In these two countries, divorces can be granted without using the services of a family lawyer who is in charge of the proceedings.30 The act of granting divorces for the parties in a marriage is quite simple when compared to the acts of ensuring that justice prevails for all the parties involved in the proceedings. It is also quite hard to ensure that all the concerned parties are given the appropriate care as per the law’s requirement. Finally, in most divorce cases the child’s custody remains with the mother. This implies that the father will usually end up as the victim of the proceedings. This faults have made these fathers to use extremely dangerous measures in order to ensure that the injustices are adequately addressed. They are always being required by the law to cater for their children and wife’s expenses but not maintaining custody of them.31 The Special Procedure (The Disconnect Between Theory and Practice) There is a major difference in the way divorce issues are taught theoretically and how they apply in actual law. According to previous studies by Freeman, very few teachers on health issues concerning divorce have indulged in the field of fighting against it. A few of the professionals handling divorce cases have also been involved in divorces in their real lives. This implies that they lack the required firsthand experience when attending to people who are undergoing the phenomenon in their private lives. The government and the legislative bodies in both countries have maintained the need for the professionals dealing with these cases to be equipped with guidance and counseling knowledge.32 They claim this will help in supporting the victims of divorces to evade the consequences of the act in a more efficient and easy way. The victims of divorce have also received their governments support in maintaining their children and livelihoods. This is in case a petitioner is left alone by a marriage partner and is unable to raise his family. Bibliography Abbott E, A History of Marriage (Penguin Canada 2009). Arnold-Baker C, The Companion to British History (Routledge 2001). Boele-Woelki K, Braat B and Curry-Sumner, I. British Family Law in Action: Parental Responsibilities (Intersentia 2005) Boele-Woelki K, Common Core and Better Law in British Family Law (Intersentia 2005). Bond T, Black J M and Bridge J Family Law (Oxford University Press 2008). Chuah J and Earle R, Statutes and Conventions on Private English Law (Routledge-Cavendish 2005). Davies M, The Blackwell Encyclopedia of Social Work in Britain (Wiley-Blackwell 2000). De Cruz P, Family Law, Sex and Society: A Comparative Study of Family Law (Taylor and Francis 2001). Finlay H A, To Have But Not To Hold: A History of Attitudes To Marriage and Divorce in England and Wales (Federation Press 2005). Freeman S, A Guide to Divorce and the Law (Straight Forward Co Ltd 2009). Marian R, Mediation in Family Disputes, Principles of Practice (Ashgate Publishing Limited 2008). Marsh,D C, The Changing Social Structure of England and Wales (Routledge 2003). Masson J, Bailey-Harris R and Cretney S, Principles of Family Law (Sweet and Maxwell, 2003) Miller G. (ed.), Frontiers of Family Law (Ashgate Publishing 2004) Murphy J, English Dimensions in Family Law (Manchester University Press 2005) O’Halloran K, The Politics of Adoption: English Perspectives on Law, Policy and Practice (Springer 2006) Plowright J, The Routledge Dictionary of Modern British History (Taylor and Francis 2007). Probert R, Family Law in England and Wales (Kluwer Law international 2011) Stark B, British Family Law: An Introduction (Ashgate Pub Company 2005). Tarassenko S and Da Costa E, Family and Matrimonial Law (Routledge-Cavendish 2000). Read More