The need for divorce reform - Essay Example

The need for divorce reform Introduction: Changing trends in society have made the traditional nuclear family a less widespread entity, compared to what it used to be. Divorce laws in the early 1900s were stringent, the occasion for divorce was rare. But the first indications of a society that was changing were visible in the 1960s and the drift away from marriage towards living together was just beginning, even in Sweden1. The Morton Commission first took up the study of Marriage and divorce in 1956, but it did not take into account the social evidence, and therefore did not understand the need for reforms in the Divorce laws, a feature which was criticized roundly by experts2. In 1966, the Law Commission undertook a study and noted that 40% of illegitimate births occurred in stable families, a factor that mooted reform in the divorce laws. There is a need to evaluate social evidence in making the estimation about the need for reform and the kinds of reform that will be appropriate. Proposals for reform in the divorce process were mooted by Government4 in a report that examined the viability of mediation as an option in handling divorce costs in view of rising costs that were accruing to contestants in a divorce. As a result of the need for reform that was identified in this report, the Family Law Act of 1996 was passed by Parliament in 1996, whereby divorce is granted on the basis of an irretrievable breakdown of a marriage. While this law introduces many useful amendments, the problem is that some of the provisions are still not operational and may not be brought into effect. Some of the major grounds that permit divorce are (a) adultery (b) unreasonable behavior (c) separation (d) two years separation with consent (e) five years separation without consent. The major causes of divorce are adultery and unreasonable behavior, reflecting the changing social mores that have created single parent families, step parents, same sex parents and extended family units. In view of the issues that rise in a divorce settlement, including high costs and the need to reduce acrimony in the divorce for the welfare of the children that may be involved in the divorce process, arbitration may emerge as a viable process. The number of broken marriages is rising rapidly and as of 2003, the divorce rate was up by 4000 in the year 2002, from the rate of 147,735 divorces in 2001.3 The average divorce has also become much more expensive and was roughly pegged at about 13,000 pounds in 2003, with some divorces in the higher range of 25,000 pounds.3 Moreover, if the cases go up on appeal, then the costs become even more prohibitive. Major causes of action for reform: The major issues that mandate a corresponding reform in the process in divorce law are: (a) the ancillary relief or financial issues between the parties (b) the issue of fathers’ rights in a divorce (c) the need to provide for alternative legal means to resolve marital conflicts, so that the high costs are avoided and (d) the need to make provisions for same sex partnerships so that the needs of children can be met. Financial issues The most thorny issue that arises in a divorce settlement is the issue of distribution of pension funds, which is likely to be the second largest asset a family has after its home, and therefore capital distribution of pensions has become a regular issue for lawyers to deal with.5 The Welfare reform and Pensions Act of 1999 has now introduced provisions whereby the Courts have the authority to divide the pension benefits, thereby creating new benefits for the non pension member of the marriage. Methods used are earmarking and pension splitting.16This has been introduced into the Matrimonial Causes Act. Morever the Marriage and family Proceedings Act of 1984 has also amended Part III, in order to permit UK and Wales courts to distribute pensions even if the actual divorce has taken place abroad. However, these new provisions have been the source of considerable confusion, since it introduces highly complex and technical legislation which must now be understood and practiced by family lawyers. Two relevant cases in this context are Ghaidan v Godin-Mendoza7 and Stewart v Stewart8, where the major issue at stake was the equitable distribution of pension funds. In the case of Stewart v Stewart, the major issue at stake was the actuarial valuation of her husband’s interest in an occupational pension scheme. This scheme was deemed to produce a much higher value when her husband retired and she made an averment regarding her claim on it. Such issues are now common in divorce suits and the law has scant provision available for the equitable division of pension funds and other investments that will mature at a future date. A divorce raises the question of how the family income is to be distributed and who is to support the children. Assets like houses are appreciating at a fast rate and it is difficult to make a distribution on the basis of the current value of a house, which could be worth considerably much more due to appreciation in value. There is also the issue of child care. The existing divorce law makes the father entirely responsible for the financial upkeep of the child and he is obliged to pay for child care. In the case of HockenJos v Sos Jgt6, the Judge expressed his opinion that the practice of making only the father responsible was “grotesque….a law so framed is so far from reality that it brings the law into disrepute and justifiably fuels the passions of protesting fathers.”6 But on the other hand, a divorce places a woman at a considerable financial disadvantage, especially since she may be unemployed or a low wage earner. According to Grant Thornton who conducted a study in the U.K. on divorce, the factor of family strain “tends to involve the families of women (78% of cases) rather than mens (22%), whilst emotional/physical abuse, and likewise addictions, tend to be more evenly split with women suffering it 60% of time and men in 40% of cases.9 The increased costs and the sharing of the financial and other responsibilities between the parents in a changing society where the rights of both partners have to be respected is an issue that calls for serious reform. But the major overriding financial issue that rises in a divorce is often the question of how to fund the inflated costs that are entailed in a divorce. Women are generally worse off in a divorce suit since they are sometimes unemployed and are home bound wives, raising their children. The high costs involved with retaining counsel, bearing the charges for the processing of divorce papers and subsequent follow up in courts can be expensive. Some women turn to their family and friends for loans but the Courts do not generally include these amount sin the settlements that are decided, because they consider them soft loans, which puts the women into further hardship10. Women then have to resort to credit card loans which entail payments of huge amounts of interest. Some financing firms work with divorce lawyers and offer clients who have equity in houses, loans at 10.75% interest rates, working on the basis of the risk that the women gets nothing out of the divorce settlement. Therefore the entire procedure can be time consuming and costly with no financial benefits to show for it in the end. The issue of father’s rights Courts in the U.K. have traditionally handed over custody of the children to the mothers and the fathers are relegated to the role of financial provider. The majority of child support is paid by the father and this raises the issue of financial fairness to the father since in the present day, most women are also working. Fathers also believe that they are at a disadvantage when it comes to court orders17. The question of joint residence orders vs custody orders has been an issue in several cases18, being a source of acrimony for the parents and children. The need for reform in this area has been mooted in a Law Commission report that states; “ the main difference between a residence order and a custody order is that the new order should be flexible enough to accommodate a much wider range of situations.”19 Additionally, the stress of a broken marriage may create an atmosphere of stress and children are aware of the stress and the fact that they are the cause for the stress, which in turn impacts the children negatively. The need to pay attention to the effect of divorce on children is evident in the decision of the Court of Appeal20 wherein the need for flexibility in post divorce arrangements was underlined. The present system links the child to its mother and the stress that the father’s visits cause can be damaging in some instances. In the case that was decided in 1999 in a UK court11 the custody had been given to the mother, but the father was allowed to visit. The child enjoyed being with his father and vice versa, but this was a stressful situation for the mother and the child was attuned to this stress, as a result of which the father’s rights were curtailed and the Court withdrew the permission for him to visit his child. There are many such instances where fathers are deprived of their children which is a heartbreaking experience for them. According to Lady Elizabeth Butler Sloss, a top UK Family Court judge, “There is, of course, no doubt that some parents, particularly mothers, are responsible for alienating their children from their fathers without good reason and thereby creating this sometimes insoluble problem”12 The role of the mother as the primary care giver is changing in the present social context and fathers may be as dedicated to their children as the mothers are. In some cases domestic violence is alleged to be the cause for the divorce and for keeping the child away from the male parent, but there are also instances where women deliberately prevent their husbands from seeing their children and fathers so deprived, may even become suicidal. In its 2005 Election Manifesto15, the UK Labor Party said: “For those parents who so separate or divorce, both have a responsibility for a meaningful relationship with their children where that is safe….we also need to ensure that court orders on access are enforced according to the best interests of the child, which ideally gives both parents an important role.” Hence, in view of the changing roles of fathers and mothers and the fact that women now work and sometimes earn more than their husband, the old equations have to be reviewed and changed. The need for alternative dispute resolution: In view of the high costs of a divorce that have been enumerated above, it is high time that the divorce laws undergo some serious reforms to provide for alternative means of dispute resolution. The present scenario is such that some people divorce not only once but two or three times and the rising costs have to be managed. In March 1982, existing conciliation services in England and Wales were examined by an Interdepartmental Committee established by the Lord Chancellor.13 This report examined different approaches in conciliation that were currently being offered by the Courts in order to determine their efficacy. The results of this study showed that most of the schemes available where there was a high degree of interference and control by the Courts were the least successful in achieving their ends, while some of the conciliation measures were successful. In view of the rising costs, it is much more cost effective to stay married wherever possible. However in the event the disagreement is simply too unbearable or there are grounds of adultery or intolerably unreasonable behavior, this option may not be a viable one. But this report shows that there are inherent possibilities in preferring arbitration to adjudication as far as a divorce proceeding is concerned, because it may be a cost effective notion. The researchers proposed a cost effective model that would likely elicit good results but insisted that this model should be based upon the following provisions (a) it should be voluntary (b) it should not focus only on issues concerning children and (c) it should not overlap with other welfare and legal processes. At present, although the Family Welfare Act17 exists, all the provisions are not operational. Further reforms are being mooted, but this research study provides a great deal of information on which kind of arbitration techniques are effective in addressing the issues of a broken marriage. The existing facilities for arbitration are not developed properly and there is a great deal of scope for improvement in these services in order to make them more effective, so that they can provide a cost effective, efficient alternative to the long drawn out and torturous process of formal divorce proceedings in a court of law. Rather than making the divorce proceeding an adversarial process, the major thrust must be on saving marriages, in order to avoid the costs to the family in terms of financial, emotional, mental and other losses. The need to make provision for same sex marriages With the breaking up of the traditional nuclear family, other societal relations are also changing and one of them is the evolution of a new kind of partnership, which is same sex couples. The Civil Partnership Act of 2004 which will become operational in December 2005 has been passed precisely to address the legal issues that rise in this new partnership that exists in society today, for which no provision exists in the current law. According to this Act, the partnership of two people of the same sex provides them with many of the same legal rights that are enjoyed by a married couple and it is believed that this will be relevant for proper financial settlements in the event of a disagreement between the two partners which results in a breakup14. This also provides same sex couples the opportunity to enter into a partnership and detailed provisions have been set out for establishing a cause of breakup. This partnership has also provided a new avenue for the care of children through the Adoption and Children Act of 2002, where by civil partners are in the same position as spouses as far as a child is concerned. Succession, tax and inheritance issues have also been spelt out in the act. But there have been some criticisms leveled against the Act, on the grounds that it has added new levels of discrimination. Gay couples still cannot get married and heterosexual couples will be excluded from the facilities offered by the civil partnership. Conclusion The above demonstrates that there have been several changes in society, distribution of economic assets and the position of women since the divorce laws were first framed and the amendments that have been carried out so far have not been able to satisfactorily address the needs of a rapidly changing society. The increasing breakup of marriages has also created the need to devise a proper framer for adjudication of disputes and reforms to existing laws to provide for the needs of children who are affected by the phenomenon of divorce. There is also a need to address the issue of the rights of the fathers, since divorce courts have traditionally handed over custody to the mothers. The issue of exploding costs must also be addressed. Therefore in view of all these factors, it becomes necessary for the Government to mandate and successfully implemented reforms in the Divorce laws currently operational in the U.K. References: 1 Trost, Jan. (1980) "Cohabitation without Marriage in Sweden" in Eekelaar and Katz (eds), Marriage and Cohabitation in Contemporary Sciences, Chap. 2. 2 O.Kahn-Freund. (1956) “Divorce Law reform?” 19 MLR 573 3 “Splitting headache in the Divorce Court” (2003). The Guardian, U.K. [Online] Available at: http://www.guardian.co.uk/guardian_jobs_and_money/story/0,3605,1036228,00.html 4 Looking to the Future: Mediation and the Ground for Divorce (1993). Cm. 2424 HMSO. 5 Bamber, Roger. (2005). A Publication review of :Pensions and Marriage Breakdown” by David Davidson. Private Client Business, 5 pp 300-303. 6 HockenJos v Sos Jgt (2005). A Court of Appeal judgment in U.K. 7 Ghaidan v Godin Mendoza. (2004). L & T.R. 3, House of Lords 8 Stewart v Stewart (2001) S.L.T. (Sh Ct 114) Sheriff Court of North Strathclyde at Greenock 9 Thornton, Grant.(2004) “Extra Marital Affairs remain the biggest cause of divorce” [Online] Available at : http://www.grant-thornton.co.uk/pages/press_room- press_releases-extra-marital_affairs_remain_biggest_cause_for_divorce_as_ major_increases_in_family_strains_and_emotional_physical_abuse_also_cause_more_splits_new_survey_.html . 10 The Guardian, Uk, Ibid 11 RE K (Contact: Mothers Anxiety) [1999] 2 FLR 703 12 Re L, V, M, H (Contact: Domestic Violence) [2002] 2 FLR 334 at 351\ 13 Report to the Lord Chancellor (1989). “Costs and Effectiveness of Conciliation in England and Wales. Copies of the report available from the Lord Chancellors Department. Trevelyan House, Great Peter Street, London SW1P 2BY 14 Washington, Julian. (2005). “The Civil Partnership Act 2004: The legal recognition of same sex relationships in the UK. Private Client Business. (3), p 177-183. 15 Election Manifesto available online at: http://www.labour.org.uk/fileadmin/manifesto_13042005_a3/flash/manifesto_2005.swf 16 http://www.lawpack.co.uk/pensions%20on%20divorce.asp 17 http://www.lawpack.co.uk/who_gets_the_children.asp 18 See the cases of D v D (Shared Residence Order) [2001] 1 FLR 495 (D v D); Re A (Children) (Shared Residence) [2002] 1 FCR 177 (Re A); and Re F (Shared Residence Order) [2003] 2 FLR 397(Re F). 19 Law Commision Report at (2001) 1 FLR 499 20 Re P (Section 91(14) Guidelines)[1999] 2 FLR573 Read More