Divorce Regulations in Great Britain - Research Paper Example

Divorce Regulations in Great Britain In 1963 the law still denied divorce except to those who could provide evidence sufficient to convince a court of a partner's adultery or other matrimonial offence. In that year, a determined attempt was made to change the law to allow divorce where a couple had lived apart for at least seven years. The attempt failed. But less than a decade later the Divorce Reform Act 1969 allowed divorce if the parties had lived apart for two years (and both consented) or five years (if one did not consent). How did such a dramatic change come about in what, in this context, seems a remarkably short time? (Castles, 1994) One answer no doubt lies in what could be called 'the spirit of the age'. 1963 was, after all, the year in which (according to Philip Larkin) 'sexual intercourse began'. It was also the year of the so-called Profumo affair in which a Minister of the Crown admitted lying to Parliament about his relationship with a woman; and unprecedented press publicity was given to the surrounding events and rumours. (For example, another Minister was said to indulge in 'weird sexual practices' involving his appearing naked--save for a mask--at parties.) Lord Denning's exhaustive investigation into these matters (concluding that although there had indeed been orgies where guests indulged in 'sexual activities of a vile and revolting nature' and that it was true dinner had been served by a naked masked man yet there was not a 'shred of evidence' that the man in question was a Minister) did little to calm the fevered atmosphere. In the circumstances, it became increasingly difficult to believe that civilisation would be endangered by allowing the thousands of (often elderly and usually eminently respectable) couples living together in what came to be called 'stable illicit unions' to crush the 'empty legal shell' of an earlier marriage so that they could become in law what they had long been in fact (Castles and Flood, 1991). The massive increase in divorce associated with the two twentieth-century World Wars had been a source of grave anxiety to conventional opinion, which saw in the 'insidious growth' in the divorce rate a 'tendency to take the duties and responsibilities of marriage less seriously than formerly' and a threat to the 'whole stability of marriage' as the 'basis of a secure and stable family life'. At a somewhat less lofty level, those concerned with the administration of the family justice system became preoccupied with avoiding its collapse under the apparently relentless pressure of dirvorce petitions. 1But even amongst those who firmly believed the ideal of marriage--in particular as a way of providing children the 'settled and harmonious life on which so much of their future happiness depends' --to be the traditional union 'for better for worse, for richer for poorer . . . till death us do part' there was concern about the lot of the hundred thousand or more people living apart from their legal spouses in stable unions to which the law denied recognition. The impossibility of legalising such relationships against the will of an 'innocent' legal spouse denied many men and women (and in particular the children they bore) adequate social and financial protection (Ceschini, 1995). In 1951 in an attempt to meet this concern, Mrs Eirene White had introduced a Private Member's Bill into the House of Commons, avowedly intended 'to deal with marriages in which the spouses have lived separately for seven years, but in which no hitherto recognised ground for divorce exists or in which one partner, having grounds for action, declines to take it and keeps the other partner tied against his or her will, generally for life'. The Bill did this by invoking 'a new principle, in that it looks to the breakdown of the marriage as the ground for divorce (whilst not prejudicing the right of an injured party to seek divorce under the existing matrimonial offence provisions). This was to be achieved by adding seven years' separation to the existing grounds for divorce; but divroce was only to be granted on the separation ground if the court was satisfied, first, that there was no reasonable prospect of cohabitation being resumed; and secondly, that a petitioning husband had made adequate provision for his family's maintenance (Chesnais, 1996). Everyone who spoke on the Bill conceded that the existing law, particularly by denying the freedom to remarry to those whose marriages were long functionally dead, was capable of causing considerable hardship and unhappiness. But opponents of change claimed that in relieving this unhappiness the Bill would weaken the institution of marriage and thereby produce much more unhappiness in the future (Smith, 2002). The Labour Government accepted that the problem of the stable illicit union was a real one. But the Attorney-General suggested that there were many other problems with the marriage laws, that it would be wrong to select one of them and deal with it in isolation, and that the right course would be to set up a Royal Commission to make a comprehensive study of the marriage laws. Although the House of Commons gave a second reading to the White Bill by 131 votes to 60, Mrs White eventually acceded to Government pressure and withdrew her Bill on terms that the Government would set up the Royal Commission it had proposed. In reality, as Lord Chancellor Jowitt told Archbishop Fisher, he had agreed to the Royal Commission 'in the hope of avoiding (the White Bill] which had given rise to it' (Clark, 1999). The Royal Commission, established as one of the last acts of the Attlee Labour Government in September 1951 under the chairmanship of Lord Morton of Henryton was thus a temporising measure of a once traditional kind; and its Report--the fruit of four years' deliberation --certainly did not satisfy the hopes of those who had seen a Royal Commission as the only chance of getting a real reform of the divorce laws, much less the expressed wish of Archbishop Fisher that a full inquiry would lead to a settlement lasting fifty years (Chester, 1977). On the main issue of the ground for divorce, the Commission was hopelessly divided. On only one proposition was there any broad agreement. All save one of the Commissioners agreed that the existing (and much criticised) law based on the doctrine of the matrimonial offence should be retained. Nine of the nineteen signatories went further and took an even more conservative view: they rejected the introduction of the doctrine of breakdown of marriage in any form. For this group such a doctrine would inevitably entail recognition of divorce by consent--a change 'disastrous to the nation' encouraging people to 'abandon their marriages on the flimsiest provocation'–whilst divorce simply on the basis of a period of separation 'would have even more damaging consequences for the institution of marriage . . . it would mean that either spouse would be free to terminate the marriage at pleasure . . . [and] people would enter marriage knowing that no matter what they did or how their partners felt, they could always get free'. For these nine members, the proper function of the law was to give relief where a wrong had been done, not to provide a dignified and honourable means of release from a broken marriage. The matrimonial offence doctrine might indeed be artificial in its application to some cases, but it none the less provided a 'clear and intelligible principle'; and the 'external buttress of a system of law ' specifying the circumstances in which individuals had the right to seek the dissolution of marriage helped them to strengthen their good impulses and weaken the bad (Smith,1992). Another nine Commissioners did take a more positive view of reform. This group did not accept that divorce should only be available on proof of a matrimonial offence; and recommended making divorce available when a marriage had broken down irretrievably as demonstrated by the fact that the spouses had lived apart for seven years or more. But five of this group would have refused divorce for separation if either party objected; and even the four prepared to accept separation divorce against the will of one spouse would have insisted on an applicant in such a case demonstrating that the separation was attributable to 'unreasonable conduct of the other spouse'. Only one member of the Commission, the Scottish judge Lord Walker, was prepared to take his stand on the ground of principle that the law should favour the dissolution of marriages which had indeed broken down, irrespective of the 'guilt' or 'innocence' of the petitioner; and that divorce should be available to a spouse who had lived apart from the other for at least three years and could establish that the facts and circumstances were such as to make it improbable that an ordinary husband and wife would ever resume cohabitation (Castles, 1994). Although the (Conservative) Government was sensitive to charges that Royal Commissions were a 'recognised and timely method of shelving inconvenient questions' no one, in the light of the divergent views put forward in the Morton Report, could 'possibly expect' any government to introduce legislation permitting divorce (even by consent) after a separation of seven years and any kind of official support for legislation permitting a 'man who had gone off leaving a guiltless wife for seven years [to] come back and divorce her against her will' seemed even less likely (Smith, 1997). Not surprisingly, this setback was a bitter disappointment; and the criticisms made of the Morton Report by Professor O. R. McGregor have been influential in creating an enduring and strongly unfavourable perception of the Morton Commission. In McGregor's view, the Morton Report contributed 'nothing to our knowledge'; and had proved to be a 'device for obfuscating a socially urgent but politically inconvenient issue'. It was ( McGregor conceded) a 'matter of opinion' whether the Morton Commission was 'intellectually the worst Royal Commission of the twentieth century' (although since he thought there could be 'no dispute that [it] is the most unreadable and confused' it would seem the competition for the wooden spoon was, in McGregor's view, not severe) (Simotta, 1995). In the Miller (2006) case, the husband’s appeal complaining against his wife’s post-divorce award, which had ended a short marriage, was dismissed. This marriage had lasted less than three years, and the husband had made substantial income during the marriage. However, he decided to end the marriage when he became interested in another woman. The judge initially decided that the wife should be awarded £5 million – in the context of the husband's assets valued in the region of £17 million at the time of separation – and the Court of Appeal upheld that award. The husband, not agreeing with this ruling, appealed (Miller v Miller; McFarlane v McFarlane, 2006). In the MacFarlane (2009) case, this marriage had lasted over 16 years and included three children that were age sixteen, fifteen, and nine during the hearing. Both of the parties involved had been very successful and had steady carrers. They were also both professional individuals; the wife was a solicitor and the husband was a chartered accountant. After the second child was born, the couple had agreed that the wife should stay home with the children, and the husband would pursue his career. When they divorced, they had agreed to an equal division of assets. The problem was that there was not enough capitail to make this kind of break. Therefore, the judge made a periodical payments order of £250,000 a year to the wife (a joint lives order). The award was reduced to £180,000 by the High Court, and the amount of £250,000 was restored by the Court of Appeal, but the duration of the order was limited to five years (an extendable term order). The wife appealed (Miller v Miller; McFarlane v McFarlane, 2006). This case was studied at length in the light of fairness within the division of property after the divorce in both of these cases, since both cases seemed very unusual. They realized that a degree of consistency needed to be established so that future cases on the same lines would be treated in a similar aspect. However, they also wanted to encourage those getting divorced to consider negotiating their own solutions to achieve quicker and cheaper results (Miller v Miller; McFarlane v McFarlane, 2006). Where children were involved, it was recognized that fairness needed to be achieved because of the welfare of the children under the following elements: “(1) consideration for the present and foreseeable financial needs of the parties; (2) compensation aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage; and (3) the principle of 'equal sharing', although it was emphasized that the 'yardstick of equality' was to be applied as an aid and not a rule.” (Miller v Miller; McFarlane v McFarlane, 2006) The court felt that the periodical payments would work well for the purpose of compensation, which was distinct from the concept of maintenance, even though the couple had wanted a clean break. It was felt that the wife should not suffer because of the insufficient capital. Also, it was considered whether or not a “special” contribution was brought by one side to the marriage, and it was decided “that it would be a factor pointing away from equality of division only where it was inequitable to proceed otherwise; Baroness Hale was of the opinion that only a special contribution to the welfare, not wealth, of the family should be taken into account.” (Miller v Miller; McFarlane v McFarlane, 2006)It was further decided that each individual case needed to analyze the couple’s assets, no matter how they had been acquired, and consider those as matrimonial assets that needed to be divided with equality. (Miller v Miller; McFarlane v McFarlane, 2006) Thus, the husband’s appeal in the Miller case was dismissed, while the wife’s appeal in the McFarlane case was upheld. The fact that these cases did this has had implications on divorce proceedings. Financially, both of the women were able to come out with an equal amount of assets based on what had been accumulated during the marriage. They were both rewarded well financially overall, and this demonstrates that the court has been more favorable in being fair to each divorcing party by dividing up assets equally. (Miller v Miller; McFarlane v McFarlane, 2006) White vs. White demonstrated similar principles. The case was a landmark decision, and resulted in a fundamental change in the divorce laws—the first since the 1970s. There had been a large focus in the 1980s and 1990s on the emphasis of reasonable requirements for the spouse for the division of matrimonial assets. In many cases, the wife received less than 50% of the marital assets. However, many felt that this approach was very discriminatory toward women and did not help to protect the non-working mother. In the White case, both of the parents had been married for years and had grown children. The couple had worked as farming partners, working physically and making a contribution to both work and domestic activities. They had total assets of £4 million, and early on Mr. White’s father had given the couple a contribution. Initially the case progressed as cases almost always had-- Mrs. White was awarded £980,000, not 50%, but this was felt to meet her needs. However, the Appeals Court did not agree with this ruling and stated the fact that Mrs. White had deserved more because she had worked as a business partner. The court emphasised a partnership model rather than a needs basis and awarded her £1.7 million, the amount below an equal split due to the fact that Mr. White's family contributed in the early years. Both parties appealed: “Mr. White claimed that the case should be resolved on a needs basis and that any change in the law should be made by parliament. Mrs. White claimed that the law based on needs was inappropriate and emphasised an equal division of the assets.” (Divorce Case Law, n.d.) The House of Lords upheld the decision of the Court of Appeal. This ruling brought about an overall change in the law of divorce. It now appeared that an equal division of property was the focus, and that women would be awarded more financially in divorce cases. (Divorce Case Law, n.d.) References Castles, F. G. (1994), “On Religion and Public Policy: Does Catholicism Make a Difference?” European Journal of Political Research, 25, 19–40. Castles, F. G. and M. Flood (1991), “Divorce, the Law and Social Context: Families of Nations and the Legal Dissolution of Marriage, ” Acta Sociologica, 34, 279–97. Ceschini, R. (1995), “International Marriage and Divorce Regulations and Recognition in Italy, ” Family Law Quarterly, 29, 567–75. Chesnais, J.-C. 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Strohmeier (eds. ), Family Life and Family Policies in Europe, Volume 1, Oxford: Clarendon Press. Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 Family Law Week. Retrieved July 30, 2009, from: http://www.familylawweek.co.uk/site.aspx?i=ed1912 Peters, H. E. (1992), “Marriage and Divorce: Reply, ” American Economic Review, 82, 686–93. Simotta, D.-A. (1995), “Marriage and Divorce Regulation and Recognition in Austria, ” Family Law Quarterly, 29, 525–40. Smith, I. (1997), “Explaining the Growth of Divorce in Great Britain, ” Scottish Journal of Political Economy, 44, 519–44. Read More