Status of Divorce Law in England - Essay Example

Order No: 195359 Topic: Family Law Final Proposal on Taking account of the deficiencies of the present law of divorce, and the failure of the divorce law reforms attempted in the Family Law Act 1996, outline a divorce regime suitable for England in the 21st century, giving reasons to justify your proposals. 1. INTRODUCTION The personal law of UK is aimed at best serving the interests of the people. It has developed a tremendous legislation in case of personal law. Particularly, the law of divorce is governed by some specific enactments. Among them, most salutary enactments are: The Marriage Act, 1949, the Matrimonial Causes Act, 1973, the Family Law Act (Scotland) is also commendable in this concern. Recently, the Family Law Act, 1996 is a plus to this development of personal law in Britain, particularly in the field of divorce. The Family Law Act, 1996 enacted in Britain with a view to give effect in matters relating to divorce represents some issues that deserve proper explanation. So, reasonably, in this regard the issues to be explained may be stated in this study: 2. PURPOSE OF THE STUDY The Purpose of the present study is mainly centred on some specific issues. The Researcher intends to make a thorough study over the deficiencies reflected in the present law of divorce; divorce law reforms attempted in the Family Law Act, 1996. By this effort, the Researcher aims at exploring the defects posed in the present divorce legislation. Consequently, the Researcher would be very much capable to keenly single out the impediments in effectively implementing the divorce law of England. Pertinently, the Researcher would be able to recommend some eclectic and viable suggestions and guidelines that would ensure a paradigm-breaking change in the current divorce legislation in England. As a result, it would make the avenue in introducing a new divorce regime in England that is very much fit to adjust with the changing circumstances in 21st century in England. 3. STATUS OF DIVORCE LAW IN ENGLAND With the emergence of urbanization and process of development human life has become complex. People are being riddled with multifarious complicacies. For this, social disorganization has been the common phenomenon that is severely causing the normal upgrowing of balanced human conduct. As our interest is mainly attributed to divorce legislation, proper clarification i.e. specifying and defining the terms Divorce and Divorce Proceedings is essential. Divorce means dissolving the marital relationship. So, divorce proceeding imply the proceeding that is undertaken with a view to dissolve the marital relationship or end the conjugal ties. The growth in lone parent families, the prevalence of divorce and remarriage, and alternative ways of managing intimate relationships (such as cohabitation and 'living apart together') have eroded the normative purchase of marriage and the nuclear family (Dey & Wasoff, 2006). It is needless to say that the consequences of family break-down are jeopardizing the social cohesion. Frustration and social disorder are causing serious effects on the human conduct and social regulation. In fact, the development of divorce law is a continuous effort since 1857. As an inseparable part of this undertaking, the relevant enactments are the Marriage Act, 1949 and the Matrimonial Causes Act, 1973 are of special mention. Recently, the enactment of the Family Law Act, 1996 is the way of root to this development. The provisions as set out in those statutes put emphasis on preserving the interests of both parties so that none can be affected. It also stresses on mediation, welfare of the children, provisions escaping the financial hardship of either parties. Though the recent enactment the Family Law Act, 1996 is considered as a significant enactment, it lacks certain shortcomings. As a result, the divorce reform attempts introduced in the said enactments has been proved futile and unfructuous that has been rigorously produced in our study. 4. CRITICAL ANALYSIS The Family Law Act, 1996 deals with various issues relating to personal laws prevalent in England. As our concentration is mainly focussed on divorce matter, by making a minute analysis we find that the relevant provisions concerning divorce lacks some loopholes and shortcomings. In our view, the defects and shortcomings appeared in the said act for why the divorce reform could not see the ray of light i.e. practical implementation can be categorized as follows: 4.1. IMPROPER EXPRESSION Section 3 speaks about the conditions under which court may order for effectuating a divorce. Sub-section 1(a) states that where the marriage is irretrievably broken down, court may order for divorce. But, this does not specify the grounds clearly as to the criteria i.e. grounds that may be taken into consideration to qualify the term "irretrievable". 4.2. UNREASONABLE DELAY Of course, Sub-section 8(9) describes that information meeting should be held at least 3 months before making the statement of divorce. In such meeting the party or parties would be consulted as to the welfare of the children, ways and means that can be effective for the children to cope with the break-down of marriage, financial matters involving such marriage, protection against violence, mediation, and independent legal advice and representation available to each party,6.divorce and separation process. The languages as enunciated in section 8(5) describes that when one party make a statement , the other party must attend an information meeting before making an application to the court. Again, sub- section 8 says that an information meeting should be held at least 3 months before making the statement of divorce. So, from a perusal of both sections it is clear that after submission of a statement the other party is to wait at least 3 months. Truly speaking, this represents a ridiculous situation. Because, the provision as to holding information meeting is better one as this is proper means to justify the claim of concerned parties. But, the pre-condition of waiting three months may affect the parties. Authentically speaking, this is unreasonable delay. 4.3. APPOINTMENT OF COUNSELLOR The meaning of sub-section 8(7) provides that such counsellor of such information meeting would be appointed as per the provisions set out by the Lord Chancellor. In addition, the counsellor should not be any way concerned in respect of financial or other interests in the said proceeding. But, it creates doubt as to the jurisdiction of Lord Chancellor. Jurisdiction of Lord Chancellor may vitiate the whole proceeding in the absence of unambiguous standard. Going to a bit deeper, it can be asserted that whether the counsellor has any interest including financial interest in the said dispute depends upon the facts and circumstances consideration. But, in this connection there is no determining factor. This is, certainly, a vital loophole. 4.4. ORDER PREVENTING DIVORCE Section 10 of the Act stipulates that if an application is being made by one party for divorce, court may negate it on the application of other party; being satisfied on the following conditions: (a) dissolution of such marriage would result in substantial financial or other hardship to the other party or to a child of the family; and (b) that it would be wrong, in all the circumstances (including the conduct of the parties and the interests of any child of the family), for the marriage to be dissolved. This provision also suggests that matter of any sort of hardship depends upon facts and circumstances consideration.As there is no determining parameter; this may make the avenue of manipulating the whole process. 4.5. FORMATION OF A SEPARATE ORGAN PROTECTING CHILDREN Section 11 deals with the interests of the children involving with such divorce. It has put emphasis on preserving the maximum interests of the child.of course, persons below the age of 16 would be treated as children as per the relevant provision.Court would pay due regard whether the parents are properly caring their children and whether the said children are in safe or risked. But, how far is it posible for the court to keep a careful watch over the matter to protect the children Could it be very much irrational to shift this responsibility to a separate organ or public body with a view to scoring a better result and let the court itself go with its full speed 4.6. RESEARCH Time is running so fast. So, the dimension of society is also changing. Pertinently, demand and consequences of the society is also changing. To make this Act more suitable and effective, research efforts related to the divorce should be necessarily undertaken. 5. AN OUTLINE FOR DIVORCE REGIME APPLICABLE FOR 21ST CENTURY IN ENGLAND The modern predominant state philosophy is the democratic governance. In a country governed by democratic norms and principles are committed for maximising the interests and conveniences of people. It is well recognised that Britain is one of the frontliner countries concentrating the maximum benefit of the people. So, it should be one of the cardinal consideration for the Government in policy framing with a view to upholding the interests of people in safeguarding their familial as well as social bondage. As divorce is the inevitable part of social life; there is nothing denying or escaping this issue. The society forms the foundation of a state mechanism. Hence, negating or avoiding this inescapable social utterance implies the reluctance in the governance of state machinery. That is why, taking proper and timely undertakings is warranted by the circumstances. To meet the demand of the situation and adjust with the changing circumstances in 21st century an outline of sustainable divorce regime can be manifested with the sincere efforts by the proper channel. The scheme may be as such: The provisions of information meetings are not lucid and clear. They are illegible and confusing in expression. In addition, the qualification has not been set out for the appointment of counsellor in the said statute. The provisions states that the yardstick would be determined by the Lord Chancellor. This is too vague in clarity. Besides there is no standard to determine as to what issues would be dealt in such meeting. So, there is a chance of exercising caprice by the Counsellor. But, information meeting is the important stage. The effectiveness of the whole process depends upon this issue. So, in this connection, proper standard should be sketched out for the appointment of Counsellor and matters to be dealt in such information meeting. In this regard, 'specially trained persons could be appointed to help people considering divorce' (House of Lords debates). Further, on considering the gravity and consequences separate information meeting should be held entitled 'mandatory information meeting and voluntary information meeting' (House of Lords debates). In addition, if the situation allows and the counsellor is of the opinion to hold follow up for scoring better result in such meeting, it may do so. Every society is regulated by its respective social values. But, a social value is a variable concept and depends upon particular socio-cultural circumstances. In Britain, the socio-cultural context encourages people to such family break-down. In such break-down and remarriage, family bondage and social unity stands at stake. In this concern, government action should be initiated to make people conscious as to the adverse impact of such break-down. People should also be motivated to concentrate on protecting their children from violence and ensure all-round social benefits arising out of marital ties. For this, Government may establish a separate mechanism for effectuating such purposes. Where it is proved that either party has unreasonably and maliciously contributed the dispute, provisions should be made on the ground that the accused should be sentenced with adequate penalties. In this regard, provisions and standard should be determined by making statutory enactments. Citizen groups should be formed .Such working committees would devote in dealing with various aspects concerning divorce. These groups would study and prepare the reports over those issues having due regard to the sociological context. The main function of these private groups would disseminate their activities among the people by holding seminars, symposiums and conferences. By this, they would closely work with the local people and motivate them in accepting the findings of these groups. Both electric and print media should be made active. They should contribute as the vigilant vanguard. Only media can make a change in a country by its constructive efforts. Media by producing informative and educative articles and programme can make a sustained interaction with people. This would help the people in assessing their position i.e., self-criticism that helps in getting realisation accurately. A system of public enquiry should be established. In this system, queries and problems would be asked from the public. After considering those issues submitted by the people the said enquiry committee would prepare its periodical reports to the concerned authorities of Government. Government, then, considering the consequences of necessities, in its own motion would take proper steps for relevant legislation. Commendably, formation and functions of such committee would be determined by making a separate legislation. An intensive research effort should be undertaken. In this scheme, Government would instruct the said research body to make research over the causes and consequences of marital break-down, ways and means of preventing such break-down, benefit of social bondage and other relevant issues. This body would also be empowered to co-ordinate and co-operate with such other private research organization dealing with divorce and relevant issues. By this, this research body, by making a comprehensive examination would take means to submit reports for the consideration and necessary steps to be taken by the government. 6. RECOMMENDATIONS It is well-recognised that emergence of law is to regulate the conduct of the people and sustain a balanced social order. Hence, it is the aspiration of the people to reap benefits from the law of the land. In context of the practical utterances and scheme of the act, it is inevitable to amend the said statute in pursuance of the following considerations: 1. This Act severely lacks with clarity and specification. The word used in section 3 of the Act irretrievable should be clearly defined. For this, proper standard should be set out so that court can conveniently single out the term and effectively function its activities. 2. The duration of time for filing application as set out in section 9(8) through information meeting is preposterously defined. To make the people avail the best opportunities the time limit should be minimized reducing less than one month. 3. The terms and conditions for the appointment of counsellor should be clearly defined by the provisions of law. 4. In case of an order preventing divorce, clear guidelines should be framed to be adopted by the court. 5. A separate organ should be established to oversee the interests and preservation of the children. This would be co-ordinated by the court. Consequently, a balance would be ensured. 6. Research makes a thing viable to adjust something assertively and strongly. From a through study of the said act, it is clear that the said act is inadequate to meet the demand and aspiration of the society. So, an attempt to make an extensive research over the said act should be undertaken along with the causes and means of protecting marriage break-down with the auspices of Lord Chancellor. 7. CONCLUSION Society is a complex organogram where upbringing, nourishment and ultimate perfection of human life is ensured. In other words, we may equate this with human body. If a limb of the body is being injected, the entire system would surely be collapsed. Holding the same view, we may say that the divorce crisis may contribute in jeopardizing the entire social mechanism. In the present study, by making a categorical examination, we find that Govt. and other concerned authorities should be more active .As this issue is closely connected with the existence of society and of survival of the people, taking immediate necessary action as recommended in this paper is the sine qua non. Unless and until sustainable divorce reform is introduced and implemented, we cannot expect a better future that is inevitable for our existence. It can assertively be said that if the above stated recommendations get implementation, people would certainly be the ultimate beneficiaries. So, taking proper undertakings in this regard is the demand of time. Bibliography Dey, Ian. and Wasoff, Fran. (2006). "Mixed Messages: Parental Responsibilities, Public Opinion and the Reforms of Family Law". International Journal of Law, Policy and the Family 2006 20(2):225-248. http://lawfam.oxfordjournals.org/cgi/content/full/20/2/225 House of Lords debates, Thursday, 3 May 2001. http://www.theyworkforyou.com/lords/id=2001-05-03a.874.10&s=section%3Adebates+section%3Awhall+section%3Alor Read More