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Divorce and the Lord Chancellor: Looking to the Future or Getting Back to Basics?
Published online by Cambridge University Press: 16 January 2009
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The Government is keen to get “back to basics” about divorce. The Green Paper which the Lord Chancellor presented to Parliament in December 1993 invites us all to reflect on family values and is intended to provoke a “thorough national consideration” of the whole basis for divorce. It follows proposals by the Law Commission but is less than a ringing endorsement of the Commission's scheme. The Law Commission has advocated a shift from the current “mixed” system (embracing fault and no-fault grounds) to an entirely no-fault basis for divorce. Under these proposals divorce would be regarded as a neutral “process over time” and would not entail judgments into the causes of marriage breakdown. While the Green Paper gives qualified support to this idea, the Government has yet to reach a concluded view.
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References
1 Looking to the Future: Mediation and the Ground for Divorce (1993) Cm. 2424.
2 Law Com. Report No. 192, Family Law: The Ground for Divorce (1990) following Law Com. No. 170, Facing the Future—A Discussion Paper on the Ground for Divorce (1988).
3 The current grounds, usually referred to as “facts” (since irretrievable breakdown is in theory the sole ground) are contained in Matrimonial Causes Act 1973 s. 1(2) and are essentially adultery, unreasonable behaviour, desertion for two years, separation for two years with consent to the petition and separation for five years.
4 See “‘No-fault’ divorces plan to be dropped”, The Observer 6 February 1994. The Lord Chancellor has however denied that there is a split in the Government. See “Divorce Plan Defended”, (1994) The Times, 28 March.
5 Green Paper, ch. 9, especially paras, 9.28–9.30.
6 Foreword to the Green Paper.
7 The result of a recent survey, reported in The Times on 27 January 1994, revealed that only four in ten families consist of a married couple with children. About one-third of children born today are born outside wedlock and approximately half will grow up in one-parent households.
8 Para. 1.4.
9 Para. 1.5.
10 Para. 1.10
11 Paras. 5.6–5.10.
12 Para. 8.5.
13 Principally contained in Matrimonial Causes Act 1973 ss. 2 and 6.
14 “Not Just Marriage Breakdown” (1994) Fam. Law 121.
15 It is indeed the case, as Deech points out, that every divorce reform this century has led to an increase in the divorce rate, most notably in the years immediately following the Divorce Reform Act 1969.
16 The literature is extensive. The most influential study has probably been Wallerstein, J.S. and Kelly, J.B., Surviving the Break-up (1980)Google Scholar. For an English perspective on the effects of divorce on children and the policy of the law see Richards, Martin, Private Worlds and Public Intentions—the Role of the State at Divorce in Bainham, Andrew and Pearl, David S. (eds), Frontiers of Family Law (1993), ch. 1Google Scholar.
17 This is implicit in the retention of parental responsibility and the discouragement by s.l(5) of court orders which would unnecessarily restrict the exercise of this.
18 One factor may have been the unwillingness of the courts to countenance flexible “time-sharing” arrangements under which children spend significant periods of time in the care of each parent. But there is recent evidence that judicial attitudes may be slowly changing. See the Court of Appeal decision in A v. A (Children: Shared Residence Order), [1994] The Times 23 February.
19 Consent is essential to the initial validity of marriage. See Matrimonial Causes Act 1973 s. 12(c).
20 Report No. 192, paras. 3.6–3.9.
21 The adultery and behaviour facts are relied on in approximately 75 per cent, of all petitions. See para. 2.11.
22 A policy announced by the Prime Minister at the Conservative Party Conference in 1993 and widely interpreted, initially, as extending to matters of personal morality and supportive of traditional family values.
23 Report No. 192, para. 3.6 et seq.
24 The Law Commission referred, for example, to “the relative blameworthiness of the parties” and to “guilty” and “innocent” spouses. Ibid.
25 Reibstein, Janet and Richards, Martin, Sexual Arrangements (London 1992)Google Scholar especially at 224 et seq.
26 The idea of “partnership” underlies many of the Children Act's provisions. On the proposals for a more “open” adoption law see Department of Health White Paper, Adoption: The Future (1993) Cm. 2288 following a wide-ranging interdepartmental review.
27 Matrimonial Causes Act 1973 s. 3(1).
28 Law Com. No. 192, para. 3.26 et seq. and Green Paper, para. 6.30 et seq.
29 Ibid.
30 Green Paper, para. 6.54 et seq.
31 Schuz, Rhona, “Divorce Reform” [1993]Google Scholar Fam. Law 580, 581.
32 Paras. 9.28–9.30.
33 The Green Paper leaves open the question of who would fulfil this role but moots the alternatives of family court welfare officers, mediation services or a new and independent organisation created for the purpose. See paras. 8.9–8.11.
34 Para. 8.12.
35 Paras. 9.7–9.8.
36 A principle encapsulated in s. 1(5) which precludes the court from making any order “unless it considers that doing so would be better for the child than making no order at all”.
37 Divorce on Demand, The Times 14 December 1993.