Family Law Relating to Divorce - Essay Example

? Family Law Relating to Divorce Family Law Relating to Divorce Introduction Divorce, also referred to as thedissolution of marriage, can be defined as the legal termination of a marital union, dissolution of marital bonds or the cancellation of responsibilities and duties of married couples. Legal provisions on divorce in England and Wales form part of a larger group of family laws including legal provisions on adoption, wardship, parental responsibility, and child abduction (Manning & Cohen, 2012). All family laws, including divorce are heard in both county courts and magistrates courts (Family Proceedings Courts) which are regulated with codes of Family Procedure Rules. A division of the High Court, the Family division, also has the jurisdiction of hearing and determining family law cases, including divorce (Strong, DeVault & Cohen, 2011). Divorce should not be confused with marriage annulment, which refers to a legal declaration that a marriage is null and void. A legal process for divorce involves a wide range of issues including child custody, alimony or spousal support, division of debt and distribution of property (Manning & Cohen, 2012). This essay aims at studying the current law governing divorce in England and Wales as well as outlining the various reforms that have taken place to improve the law over the years. Types of divorce in England and Wales There are seven types of divorce cases recognized by the law in England and Wales. These are contested divorce, uncontested divorce, collaborative divorce, summary divorce, mediated divorce, at fault divorce and no fault divorce (Rapoport, 2005). Contested divorce refers to a case where the couples fail to agree on one or more issues, which are the subject of the divorce such as child custody and division of family assets and liabilities. Contested divorce often takes a longer time and is very costly, as the couple has to hire lawyers to help in the process and the outcome if determined by the hearing judge. Uncontested divorce on the other hand occurs where both parties are able to agree on the issues around the divorce involving children, support and sharing of property. The couple will then present their agreement to the courts for approval, upon which the courts will grant a divorce. Uncontested divorce cases account for about 70% of all divorce cases in the UK and the litigation process often takes a much shorter time (Rapoport, 2005). At fault divorce is one that involves a partner proving to the courts that one of them committed an act that is incompatible with their marital union and warrants a divorce. The faults are often referred to as the grounds for divorce. Common grounds for divorce in the UK include adultery, desertion, unreasonable behavior, or two years separation with consent among others. No fault divorce on the other hand is one that does not require any proof or allegation of fault from either party. This type of divorce is very popular in the UK, The US and most Western jurisdictions (Cretney, 2005). Collaborative divorce involves couples coming to an agreement on the main issues of divorce. The agreement is usually conducted with the help of lawyers who have been trained in collaborative divorce processes. The lawyers will then be disqualified from representing the couples in contested legal proceedings in court when the collaborative divorce process begins. Mediated divorce involves third party facilitating the discussion between the two parties involved in the divorce. At the closing stages of the mediation, the parties will present their agreement to a court in order to be granted a divorce. Summary divorce is often used in cases where the parties meet specified eligibility requirements or if they agree on the main issues beforehand. Some of the eligibility requirements include a short marriage of less than five years, minimal or no property and no children among others. Family law on divorce in England and Wales The legal provisions of divorce are stipulated in the Marital Causes Act of 1973 in part 1 (sections 1-10), as amended by the Matrimonial and Family Proceedings Act of 1984 (Cretney, 2005). Other general legal principles in the divorce law are contained in the Family Law Act of 1996. The other relevant pieces of legislation relevant to divorce proceedings include the Children Act of 1989, the Marriage Act of 1949, the marriage Act of 1994, the Family Proceedings Courts (Matrimonial Proceedings) Rules of 1991 and the Gender Recognition Act of 2004 (Cretney, 2005). Divorce was first allowed in the UK for ordinary citizens in 1857 with the Matrimonial Causes Act. Before then, a divorce required an Act of parliament in order to be granted (The Guardian, 2009).This was a very expensive process and only the rich could afford it. King Henry VII, for instance was granted his divorce by the Arch Bishop of Canterbury, since only the churches had the powers to dissolve marriages. The Act moved litigation of divorce cases from the authority of ecclesiastical courts in to the civil courts in order to make it accessible by everybody (The Guardian, 2009). The Matrimonial causes Act required women to file for divorce on ground of adultery, which had to be proved in court. The law favored men and made divorce proceedings difficult for women since they also had to prove other crimes such as rape, sodomy, incest or cruelty before being granted a divorces. An Amendment in 1937 allowed divorce on the grounds of insanity, drunkenness and desertion (The Guardian, 2009). Civil re-marriages after a divorce are allowed in the UK. If after a divorce process the couples feel they can reunite and resolve their differences, they can legally get married again. Religion and divorce in England and Wales Religious groups and denominations in England and Wales are not in agreement as to whether they support of differ with divorce (The Guardian, 2009). Most religious groups however are of the opinion that divorce is not Godly and that marriages cannot be separated. Others on other hand allow for divorce on certain grounds. Religious re-marriages are also a difficult process in England and Wales since some denominations are opposed to the idea. It is however important to note that in as much the law respects the various religious beliefs of individuals, religious opinions and beliefs are not a law in themselves. All divorce procedures are well covered by the law and the law overrides any religious beliefs an individual may have. Legal proceedings for a divorce case Legal provisions on divorce can only be instituted in courts after a marriage has lasted for one or more years and when the marriage has been irretrievably broken down. Before a court grants a divorce or judicial separation, the judges need to be satisfied that the marriage is valid. A valid marriage is one that was conducted within the legal framework guiding marriage and family in England and Wales. The law does not allow for extra judicial divorce processes such as those conducted by religious bodies for instance a Greek Orthodox divorce or a Muslim Talaq conducted after 1st January 1974. The family law Act of 1984 also invalidates any divorce proceedings conducted at embassies of the United Kingdom. In a divorce case Radwan v Radwan, a court ruled that a foreign embassy outside the British Isles cannot be regarded as a part of the United Kingdom. The couple had been granted a divorce in the United Arab Emirate (UAE) and the UK embassy was only used as a registry office for issuing the divorce documents. In Indyka v Indyka, the court ruled that a divorce conducted in a foreign country can be recognized by English courts if one of the parties has a real connection with the country that granted the divorce (Amato & Sobolewski, 2001). The second part of the Family Law Act 1988 introduced new guidelines for recognizing foreign divorces. The new guidelines stipulate that a foreign divorce shall be recognized in the UK if it was conducted following the legal provisions of that country and if one of the parties was a domicile, resident or national of the country at the time the divorce proceedings began. The legal process for an uncontested divorce in England and Wales begins with filing a divorce petition and a statement of arrangements or children if necessary. The documents will then be issued by the court and sent to the respondents. The respondent will then return an Acknowledgement of service to the court. The petitioner will then complete an affidavit to support the petition and request the court for directions (Amato & Sobolewski, 2001). A judge will then reflect on all the divorce papers to determine if they warrant a divorce and if he is content, will grant a Certificate of Entitlement to a Decree and Section 41 Certificate. A decree nisi will then be granted to the petitioner and a decree absolute will be issued six weeks later. The whole process can take up to six months if everything goes accordingly. Money and Payment Divorce proceedings in courts often involve a lot of legal fees. Individuals can either initiate the proceedings on their own or seek advice from solicitors who provide the necessary consultation services and help in drafting the divorce papers. The costs for filling a divorce in court in England and Wales are 340 Sterling pounds, 45 Pounds for obtaining the decree absolute and 240 for application of financial proceedings. In case the couple has an already agreed upon financial agreement, then they will only pay 45 Sterling Pounds. The presumption in paying legal fees for divorce is that each party takes care of their own legal fees. Merits of the Current divorce law in England and Wales Advantages for the current legal provisions on divorce and family law in England and Wales is the fact that both parties are given a fair hearing in case of a contested divorce. The law is also advantageous because it allows both men and women an equal opportunity to file for divorce unlike in the beginning when the laws only favored men. One huge disadvantage is the fact that the process is still costly for average citizens because of the legal fees involved. The law is very complicated and requires careful interpretation from legal practitioners (Amato & Sobolewski, 2001). Facts and statistics on Divorce and Marriage in England and Wales Divorce cases have been on the increase in the recent years, with women filing the most number of cases. This has led to concerns from various stakeholders in the family such as religious leaders and social scientist raising concerns over the current state of the family. In 2011, for instance, there were about 117, 558 reported divorce cases. This represented a decrease of 1.7% from the figures registered in 2010, and accounted for about 10.8 people involved in divorce cases per thousand population among married people (Blaisure & Saposnek, 2008). Divorce cases are also more common among both men and women aged between 40-44 years. The general percentage of marriages that end in divorce in England and Wales is 42%. Another important statistic is that about 35% of all marriages are expected to end through divorce by their 20th anniversary and an additional 5% expected to end due to death of a spouse (Blaisure & Saposnek, 2008). Only 16% of all marriages reach their 60th anniversary and an average marriage is expected to last for about 32 years in England and Wales. Reforms to the divorce law in England and Wales Given the diverse nature of the consequences of divorce, including the impact divorce has on children, there have been calls for reforms in the divorce law in order to protect the family as an institution and protect innocent children from being affected by separation or divorce of their parents (Jolivet, 2011). There have also been concerns about the motivations behind the rising cases of divorce in the country. Since most of the cases are filed by women who end up sharing family property with the husbands, some have raised concerns as to whether marriage is being used by some people as a means to gain material wealth. The increase in divorce cases can also be attributed to the popularity of no fault divorce that does not require any legal proof of fault. Given the current scenario, it is necessary to have reforms on the divorce laws in the country. New reforms to the law are necessary to bring in questions of fairness and justice for both parties (Jolivet, 2011). The new reforms are aimed at minimizing acrimony between the parties and reducing the cost of divorce proceedings where a lot of money is spent on legal help from lawyers. Proposals for improving the Divorce law in England and Wales One major proposal for changing the law on divorce is the enactment of a new formula that will be used to share divorce pay outs when sharing property between the parties (Martin, 2012). This new proposal seeks to introduce a mathematical formula that would be used to divide a couple’s property depending on the income and the duration of their marriage. This proposal was put forward by the law commission to clarify some uncertain sections of the existing law. Having a ‘divorce formula’ to help in sharing property and income will put an end to the presumption that couples share all their property on a 50-50 basis where the property is split in to half and each partner gets an equal share (Martin, 2012). Another proposal by the law commission is that inherited homes or those acquired before marriage should not be subject of sharing the properties during a divorce case (Martin, 2012). This is because these homes of properties were not acquired by the couple during their marriage and cannot therefore be part of the property sharing process. Only properties acquired by the couple during the duration of their marriage ought to be divided amongst themselves during divorce litigation. Among the proposals also is the provision of a mediation period where the couple tires to save their sinking marriage by trying to find amicable solutions to their problems apart from the divorce (Martin, 2012). These proposals will certainly help to improve the law on divorce in very many aspects. First, the legal costs involved in the divorce process will be cut down significantly. The introduction of a set mathematical formula for dividing properties will help the couples avoid expenditure on solicitors to argue their case out for fair sharing of property. The reform proposals also aim at presenting divorce as measure of last resort after mediation has failed and the couples have made up their mind on the way forward to go separate (Blaisure & Saposnek, 2008). Reflective Journal Writing this essay has been a very rewarding opportunity for me in terms of the skills and knowledge I have gathered with the respect to topic of discussion. I have developed my research techniques especially on collecting and analyzing information to come up with appropriate conclusions. In this research study, I was able to go through large amounts of data and information about family law in order to understand divorce laws. I was able to come across new information that I had not known before thereby enhancing my understanding of the subject matter. Like any other kind of study, this research had its own ups and downs. Among the difficulties that I encountered while compiling this essay was trying to go through the vast number of resources available and trying to relate each one of them to the learning objectives of the course. This required a lot of keenness and planning as well as adequate time management skills to ensure I completed the tasks on time. Next time I get an assignment of this nature I will involve myself in better planning and time management in order to ensure each piece of information is given enough time for analysis before the final essay is written. The learning objectives that I found it difficult to achieve through this essay include the requirement to go through multiple sources of information in order to get a more accurate view of the topic. This is because of the huge chunk of information available, both online and in the library regarding the topic and going through most of them was a little bit hectic for me. The objective of understanding the proposals for reforms to determine if they can improve the law on divorce was somehow easier to achieve after fully understanding the context of the current laws. I have given a lot of effort in writing this essay and I firmly believe that I have performed it to the best of my ability. Bibliography Amato P. R & Sobolewski, J. M. 2001. "The effects of divorce and marital discord on adult children's psychological well-being". American Sociological Review 66 (6): 900–921. Brinig, M & Douglas W. A. 2000. "These Boots Are Made for Walking: Why Most Divorce Filers are Women". American Law and Economics Review 2 (1): 126–129. Blaisure, K & Saposnek, D. T. 2008. "Managing Conflict During Divorce". American Association for Marriage and Family Therapy. Cretney, S. M. 2005. Family Law in the Twentieth Century: A History. Oxford University Press, Oxford. Jolivet, K. R. 2011. The Psychosocial Impact of Divorce on Children: What is a Family Lawyer to Do? American Journal of Family Law, 175-181. Manning, W. D & Cohen, J. A. 2012. "Premarital Cohabitation and Marital Dissolution: An Examination of Recent Marriages". Journal of Marriage and Family 74 (2): 377–387. Martin, B. 2012. New formula to settle divorce payouts. The Telegraph, Online. Accessed on 11th November, 2013.http://www.telegraph.co.uk/women/sex/divorce/9534190/New-formula-to-settle-divorce-payouts.html Rapoport, Y. 2005. Marriage, Money and Divorce in Medieval Islamic Society. Cambridge University Press, Cambridge. Strong, B., DeVault C., & Cohen T. F. 2011. The Marriage and Family Experience: Intimate Relationships in a Changing Society. Cengage Learning, Belmont, CA: Wadsworth. The Guardian, (19th September, 2009), A brief history of divorce: From Henry VIII to White v White. The Guardian, Online. Accessed on 11th November, 2013 http://www.theguardian.com/lifeandstyle/2009/sep/19/divorce-law-history Read More