Family law Reform of Divorce Law - Essay Example

Family law – Reform of Divorce Law Introduction Family Law Act of 1996 has taken the divorce matter to another level since it took power or force through acquiesce by the majestic family straight from the parliamentary debating. The law had no effect within the year that it got into force, and no expectations of its start were there since the end of 1999.1 The most significant section of the family law being the divorce law, as well as, the separation and cannot be overlooked even with the criticism that has been articulated by various groups of people. However, it is felt that it is considerable to premeditate on the Act even though its situation is still indecisive, as it has a lot of powers and decency in the perpetuation of the establishment of family. 2Under the enactment, intercession is presented since it has numerous recompenses such as it works out disputes harmoniously, and it can trim down build up of indictments in the court. There has existed anticipation that the debate underscores the decency of the separation reform that transpired in England. Possibly, we may gain knowledge of England in presenting a novel section of Family Law Act to the non-Muslims and to establish arbitration as a substitute approach in resolution of family difference of opinion. Overview of the Present Law on Divorce The divorce law that came in with the family law came as, reinforcement to the previous divorce law that had presented earlier, in the divorce reform that occur in 1969. The Matrimonial Causes Act of 1973 has also been updated further making the divorce law easier and diverse for persons in need of divorce. The above act bared the intention of presenting procedural no-fault divorce through the utilization of irrevocable breakdown basis, although, it fabricated matter through the retention of slipup as proof of the presented collapse. The substitute consensual and non-consensual divorces that had been presented in early years approximately twenty years, have gotten a replacement from the new laws that have become instituted, in the in the noel act.3The early reform provisions in the old constitution have gotten a replacement together, with the rest of the matrimonial faults that appeared, in terms of infidelity, manners and abandonment by independent announcement of the matrimonial failures or collapses. The modification retained the existing auxiliary assistance system that has records or has been for all this time been in effect as from 1973 that had been uncovered to 1984 amendment.4 In accordance to the novel act, from the enactment, the absolute bar gets retained concerning the initiation of any divorce proceedings within the first year of a couple’s marriage as the issue got settled in the 1973 provisions on matrimonial act that got endorsed in 19845. This insinuates that the matter discourages impetuous suits. In the act, some of the undeniable transformation is the new act concerning auxiliary relief. In this section, the exceptional trials have to be settled prior to granting of any divorce directive.6 In accordance to the act of 1857, the effigy generated a fresh divorce court that bared authority in marriage trails that formerly enjoyed the ecclesiastical courts. During this epoch, the foundation for creation of a divorce trial steadily broadened with the commendations of the royal authorities up to the 1937, when the current divorce law was acknowledged for the succession of the previous or former act on the same.7 Around this epoch in account of England, sexes, males and females had similar access of the matrimonial liberties unlike in the past where men got firsthand chances to offer divorces to their spouses. The idea of divorce became clearer on women’s side as they bared an access to bring their petitions. The matter came in as a compliment although, for most conserves of traditional practices, it came as a big surprise. The issue raised many outcries from the male dominion even though it was for the good of the ensuring democracy within all populace with no regards to any prejudice. Later on, restructuring in 1996 came as the turning point indicating substantial transformations in the divorce subject. Some of the provisions of the divorce have become comprehensive and easier to carry out the divorce proceedings. 8The family law had been anticipated to start being in complete control within December of 2000, however, the government has postponed its take of authority for several more years9. Currently, separation of broken marriages are still directed by the Matrimonial Act of 1973, in which the appliance for annulment has to be carried out in the incident where, the spouses have had their marriage for the last one year or more, and the solitary reason for wanting to divorce is that the marriage institution has irreversibly broken down. The act of 1996 brought in noteworthy changes throughout its creation and prologue into the legal systems. In the second section of the act, the act allows for the no fault annulment, the most controversial issue that has received a lot of criticism from the public from every corner of United Kingdom. The no fault scheme may be considered a formidable threat to the institution of marriage as the public has the minimum requirements in the appliance of divorce. The foundation for divorce comprises of five different reasons all through England. The five foundations as provided by the 1996 act include; infidelity, unreasonable behavior, abandonment, parting for two years and parting for more than five years. Couples can call for divorce proceedings in cases where, either of the spouses that are husband or wife involved in activities that lead to sexual intercourse with other persons excluding their marital partners.10 In the case where whichever of the spouses offers this as the reason or foundation for their divorce, the partner ought to have substantial evidence concerning the claim.11 The spouse has to have an adequate circumstantial substantiation for the allegation to be considered viable for the appliance for divorce. In case the foundation for matrimony breakdown is unreasonable behavior by either of the spouses, reason for the claim of unreasonable behavior, has to be convincing enough for a partner to call for an annulment.12 The matter presented by the spouse has to be a complex subject such as domestic abuses or intake of drug substances. Such subject will have to suggest that the presented reasons t hat have negative effects on the lives of the supplementary partners. In case of desert, the spouse might abandon their partners for an epoch of around two years.13 In order to obtain the divorce green lights, the partner claiming abandonment on this foundation or basis has totally convince, the policy enforcers that the partners has indeed deserted them, and it is not just a mere separation that occurs regularly between married couples.14 Under the foundation of separation for an epoch of two years, the spouses must be living separately from the other by reciprocated approval over an epoch of two years. In case, the divorce has been determined based on severance for an epoch of five years; reciprocated approval may not be required to acquire annulment.15 The most far-reaching transformation the edict endeavored to compel couples to arbitrate prior to severance. Couples were directed to go to information gatherings prior to recording declarations of matrimony termination. Later on, what ensued was a period of deliberation for a bare minimum of nine months. However, these exercises were principally neglected by the parliament after preliminary consequences came without prospect. Criticisms However, despite all the influential transformations in the acts more so concerning divorce, criticism from different people within and outside the government intensified. The most controversial subject to the correction is the ever-changing divorce laws in the precedent five years.16 The subject has stirred many public outcries over the entire English populace. The subjected presented suggests that England has no comprehensive no genuine assistance concerning law on divorce. These concerns the factions in dispute, in that people having various assets, can present a trial, and in case it gets a rejection, the law has no provisions on how to go about the subject.17 Therefore, this hinders the parties from having any prospect plans especially because the system in England has no recognition for pre-matrimonial accords. The divorce system in England presents weakness in the event; the assets within the marriage for the two parties in dispute are taken together under marital assets. The assets in the marriage whether the spouse still owned them in a previous life before marriage are taken as marital assets.18 The assets include any other possessions even if they have been inherited. The courts further present a chance for the parties to utilize the alleged delinquency as a noteworthy element for the court’s decision concerning the division of the presented assets.19 This factor has brought in an enormous challenge for the legal advocates since the expected outcome cannot be decided since the decisions change with every case that is presented. This proposes that the representatives to the spouses have to dig up as must as possible on their opponents in order to win a case on divorce.20 The representative also ought to have as much knowledge concerning international decree as possible. The system, therefore, presents a suggestion that the law has no basis for decisions and cannot be said to be comprehensive enough. In appliance for a divorce, the law says little about the grounds of breakdown of couple of marriages. The act emphasizes more on the grounds for annulment, and evident enough a marriage gets broken down, not because of a single reason but a sequence of reasons. The law mostly looks at whether the marriage has broken irreversibly and as evident, this gets confirmed if the parties have been separated for around one year.21 The divorce also does not settle the issue of children invincibly since it merely confirms whether the spouses have provided proper arrangements for the children. For reasonable epoch, modest intercession of the parliament in subjects concerning family law has appeared. This means that little reforms have been consummated in this field of law. The commonest or significant reforms are the MCA 1973 that had the potential for re-enactment concerning the divorce reforms.22 The act that had been presented in 1984 bared some positive impacts through the provision of the equitable and indispensable imperative to clean breaks although the judicial case law has profoundly pulverized the same.23 Therefore, the reform has not significant alteration to the previous situation due to the poor legal cases. Reforms The reformation of law on divorce had existed straight from the period when the doctrine ensured equal liberties to filing parting proceedings for both parties in marriage dispute. The matrimonial act within 1923 presented the female gender with an equal chance to file annulment against their spouses a matter that never existed until this epoch in the history. Later on, the fault doctrine applied in the divorce dealings brought in discontent, and this called for an enactment in 1969 through the reform on separation. Similarly, it was recognized that the marriage offences were more of the resultant than the effects of the broken matrimonial, therefore, leading to the 1969 enactment. The provisions presented in the reform that transpired in 1969 were incorporated into the matrimonial act that got underway in 1973. In the epoch between 1973 and 1984, there was no further petition relating to divorce got brought out prior to the passage of three years from the marriage date. Some considerations emerged concerning the subject specifically by the commission.24 Some of the restrictions were, however, retained concerning the occurrence of a divorce at preliminary stages of marriage. However, the transformations that got instituted into these reforms produced almost insignificant impacts. The FLA 1996 included the conciliation or arbitration into divorce proceedings. The pressure that the act presented was to make possible the concurrence concerning the prospect to be achieved by the spouses during the epoch of contemplation and deliberation.25 Various propositions had been developed by the commission in an attempt to bring reform to divorce. The proposals presented came from the committee mandated with developing and implementing MCA 1973 that would later be incorporated into FLA 1996. The committees provided varying proposal, although they were not bestowed, with the authority, to recommend substantive restructuring. Further proposal were brought forth by different subjects concerning divorce in preparation of the FLA 1996 even though it never materialized.26 Divorce Systems Different states have dissimilar divorce systems despite the similarities in the lawful systems. The system of law in India bears many similarities to the arrangement that exists in England and Wales. The two-law structure bears numerous similar principles although the divorce system bears certain differences. The divorce system for India has some essence in the faiths and religions of different populace unlike the system in England that has no linkage to any religions or faiths.27 In the Indian context, divorce is achieved through religious, community basis and in cases where the matrimony bears people with different devotion, and then there is the appliance of significant regulations. The structure bears the recognition of the cultural miscellany within the country where dissimilar customs have dissimilar beliefs concerning divorces and other general issues. In UK, the legislation has no delineation in terms of customs or religion or rather applies the legislation equally among all people despite their region or culture. The legislation is rather partitioned into MCA 1973 and FLA1996. The foundations for divorce appear to be similar in both systems with the differences appearing in the time limits.28 The divorce structure in India on the process of gaining divorce appears to be analogous. However, in India, the reciprocated approvals from both parties are required and in the case of contested annulment, the paperwork has to be presented to judges on the case in order to award any ruling.29 In the UK structure, the court appearances are not required since the judge does the work of examination and analysis of the content. In case he or she stumble on anything that necessitates the divorce, then the verdict of divorce may be awarded, and in case, the reasons or foundation for the separation have not been presented, in the best manner with the required justification, then the ruling for separation may not be presented.30 In this structure, the final word of the judge cannot be contested. The divorce system that recognizes the cultural diversity within a country appears reasonable since different cultures bear different divorce customs.31 In certain religions or cultural backgrounds split-up may bring certain implications, which means that, the divorcing parties have to watch out for these implications. Failure to recognize the implications could mean breaking of cultural or religious taboos that have been carried in the societal context for a long time. The practices cannot be ignored since they can have certain effects in lives of individuals or their off springs in future. These societies, therefore, observe the customs as per the religious and cultural context. The system found in UK cannot be preferred in case the nation has an immense cultural diversity. However, as we all know, there are no countries with no cultural diversity meaning that even in UK, religious diversity still exist. Consequently, this shows that the system in UK ignores the religious diversity and takes into thought the native people of that country.32 Therefore, this suggests that the system is rather impartial or selective, and it is not flexible in terms of diversity that exists all over the globe. Conclusion Family bylaw has been of substantial significance in the transformation of many aspects of matrimonial subject more importantly, the divorce proceeding straight from the application for separation to the final decree. The system in England has, therefore, been prone to criticism since it does not present or address certain essential details in the process of separation. Overall, it has become better and better providing a disparity between the past and current divorce proceedings. The disparities have been attributed to the vital reforms that have taken place throughout the years. The transformations have been pushed through although the same has not happened with the statute of 1996 due to certain objections. The system has to make more and more transformations to make all the patio processes better and makes recognition of the diversity within the state. Works Cited Burton, Frances, Family Law, Great Britain: Cavendish publishers, 2003. Burton, Frances, Guide to the Family Law act 1996, Great Britain: Cavendish publishers, 1996. Ebarton, Hague and Dixon solicitors: Divorce. Feb 6, 2009, Web Dec 16, 2011. Available at < http://www.hague-dixon.co.uk/files/Divorce.pdf > Hadzi-Vidanovic, Vidan, Divorce Law: India V UK, Jan 31, 2011, Web, Dec 16, 2011. Available at < http://www.inbrief.co.uk/divorce-law/divorce-the-uk-and-india.htm > Hodson, David, Every Family Matters: An in-depth review of family law in Britain, July 8, 2009, Web, Dec 16, 2011. Available at < http://www.centreforsocialjustice.org.uk/client/downloads/WEB%20CSJ%20Every%20Family%20Matters_smallres.pdf > Hodson, David, A Guide to Divorce Procedure in England and Wales, March 27, 2007. Web. Dec 16, 2011. Available at < http://www.davidhodson.com/assets/documents/divorce1.pdf > Ibrahim, Norliah et al, Divorce reform and family mediation in England: an overview of the relevant provisions of the Family Law Act, 1996, IIUM Law Journal, 2009, 17 (2). pp. 247-269 Lake, William, Grounds for Divorce in England, Introduction to the Family Law Act 1996, 2008, Web, Dec 16, 2011. Available at < http://factoidz.com/grounds-for-divorce-in-england-introduction-to-the-family-law-act-1996/ > Maryum, Family Law Act 1996 Divorce, July 26, 2011, Web, Dec 16, 2011. Available at < http://www.blockaid.org/family-law-act-1996-divorce-2/> Rees-Mogg, William, English divorce law: Divorced from reality, Feb 13, 2006, Web, Dec 16, 2011. Available at < http://www.internationalfamilylawfirm.com/2006/02/english-divorce-law-divorced-from.html > Smart, Carol, Divorce in England 1950-2000: A Moral Tale, Oct 6, 2003, Web, Dec 16, 2011. Available at < http://www.leeds.ac.uk/cava/papers/wsp2.pdf > Terena. Divorce and Dissolution. Nov 6, 2008, Web, Dec 16, 2011. Available at < https://www.londoninternational.ac.uk/current_students/programme_resources/laws/subject_guides/family/family_law08_ch3.pdf > Read More