The Basis of Divorce in England and Wales - Essay Sample

Introduction

Matrimonial Causes Act (MCA) 1973, the section states that divorce can be granted if the marriage has broken down irretrievably.For the matrimony to be considered permanently broken, the petitioner has to provide proof by presenting one or more of the five facts in section one of the MCA. The five realities are adultery of the respondent, and the petitioner cannot tolerate living with the prior. The second fact is unreasonable behavior of the respondent such that the petitioner feels he or she cannot live reasonably with the respondent. Thirdly, the petitioner has been left by the respondent for more than two continuous years before the petition. Fourthly, the spouses have lived apart for atleast two continuous years before the appeal, and the respondent agrees to the decree. The last fact is that the spouses have lived separately for five continuous years and for this case, no consent is needed. The petitioner has to prove the first three facts that are based on fault while the last two are related to the time range of the separation.

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Owens vs. Owens

Beyond the contemplation of Mr. and Mrs. Owens, the high court's decision on Owens v Owens [2018] UKSC 41 divorce case would see them make news and become a point of reference for years. The verdict also prompted the government to make a quick assembly to make consultation about reforms in divorce. At the time of the hearing in the Supreme Court, they Mr. and Mrs.Owens were aged 80 and 68 respectively and had been married in 1978. The petition was made by Mrs. Owensbecause of her husband's behavior s1 (2) (b) Matrimonial Causes Act 1973). Mr.Owens wanted to defend the decision, and this prompted the court to be provided with 27 claims of the behavior. The allegations were made, but the husband denied them terming them as exaggerated. The findings proved that the marriage had de facto irreversibly broken down, but Judge Tolson QC stated that Mrs.Owens had failed to show that it was unreasonable to live with Mr.Owens. He further referred to the claims as overstated and insubstantial. It meant that according to the law Mr. Owens had failed to prove that, the marriage had broken down, but she was entitled to a decree.

The appeal made to the Supreme Court was because Judge Tolson had only considered four claims out of the 27 and thus he had not considered the effects the disregard of the other 23 claims would have on her. She had also argued that s1 (2) (b) had been wrongly interpreted because the judge had casually linked the behavior to the cause of the marriage breakdown and made an implication that the actions had to be unreasonable. After a detailed survey of the case and the law's operation, The Court of Appeal maintained the decision and dismissed the case. The leading judge, Lord Wilson, Lord Hodge, and Lady Black agreed to dismiss the petition. The other two judges, Lord Mance, and Lady Hale, made some like-minded speech, and the latter was willing to allow the appeal, but for the reasons that follow, she also let it go.

Lady Hale agreed that the case was troubling but went on to state that the court was only mandated with the role of interpreting parliament laws but not to change them. She agreed in the appeal's dismissal because of stages of inquiry Lord Wilson had made which include, determining whether by reference the allegations made to the respondent were correct or incorrect. The second stage was determining the effect the behavior had on the petitioner considering all the situations that the conduct occurred and the personality and the disposition of the latter. The final stage provided by Lord Wilson was evaluating whether it would be unreasonable for the petitioner to continue staying with the defendant in light of the effect of the behavior of the latter to the petitioner. Further, Lady Hale stated that there is a change in the social norm and marriage is recognized as an equal partnership not only reflected in family law but also equality and anti-discrimination legislation. Also, she stated that there was a change in the Divorce Reform Act over the 47 years since 1969 when it was formed in the light of whether it is reasonable for spouses to continue living with each other despite the behavior of one of the spouses and the effect of the action to the other spouse. It thus means that with the passage of years, the application of inquiry to the facts of the individual is likely to change.

The Strange State of the Law on Divorce

The number of divorce cases rises each year due to several circumstances. Many couples nowadays stay in their marriages for a shorter period than expected. Away from that, the process of divorce proves stressful for many because it consists of several complicated issues. One divorce issue, though not characteristic, associated with separation, goes by the term alimony, where one spouse, probably the higher- earning one makes regular payments to the other spouse. However, a lot of people do not understand maintenance in details and therefore say false information concerning the issue. Alimony works differently in various regions. For instance, California has its implementations concerning spousal support. In California, spousal support comes in two different ways, that is, temporary and permanent. Temporary spousal support happens during the divorce process. The higher-earning partner financially supports the other partner until the separation process commences. After finalization of the divorce papers, the higher-earning individual can stop helping the other person. Sometimes, the partner that earns more money has to support the other person permanently or for an extended period even after finalization of the divorce process. The supported partner maintains the financial status established during the marriage.

From the decision made by the courts, it proves that the statement 'The present law on divorce is in a strange state,' is correct and debatable. The case of Owens v Owens [2018] UKSC 41, the wife will continue to live in an unhappy marriage up to 2020 when she can finally be granted the petition. Despite having presented an argument using the facts in s1(2)(b) and showing the irrational behavior of her husband by presenting the 27 claims of the unreasonable behavior she still finds herself stuck in the marriage. According to professor Gilmore and others, the decision by the court is important because it shows that the reliance on the 'unreasonable behavior' is ambiguous.Nevertheless, there is a need to reform the law in this context because the subsection does not state that the spouse has to prove beyond reasonable doubt that the behavior of the other partner is unreasonable. Instead, as long as the marriage is irrevocably broken up like the case of Owens v Owens [2018] UKSC 41, the court can grant a petition based on that fact. The reform will save many couples from living in a shell marriage. The divorce law is indeed in a strange state if it cannot see beyond the borders of unreasonable behavior.

According to Liz Trinder, An introduction to nullity, the courts make no judgment based on the claims made because the petitions made do not accurately describe the reasons for marriage breakdowns. According to the report, the survey carried out shows that there were no questions raised in court about the truthfulness of the claims made in the analysis made on 592 cases. In the case Rapisarda v Colladon [2014] EWFC 35, the divorce petitions were noted to have the same postal address. Lord Munby stated, '...given the dimensions of the mailbox, it is clear that not even a single individual, however small, could reside in it.' It became clear there was 'a conspiracy to pervert the course of justice on an almost industrial scale.' The petition was dismissed on the basis of fraud with no further considerations as it was considered a conspiracy to end a fictional marriage.

Additionally, there is the uncertainty of what should be considered as unreasonable behavior, which in turn undermines the rule of law of intelligence, clarity, and predictability. According to nullity foundation, many petitions in the 1980s were based on the evidence of physical violence.Since the allegations made on the same have reduced significantly, there is courts do not precisely know what to consider as 'behavior.' Because of the two reasons, many people suffering marriages because they do not know what would constitute as unreasonable behavior. Also, when petitions are filed, they are stronger than necessary. The divorce law should, therefore, be reviewed to clear the ambiguity that it carries so that cases of divorce are easier to handle. The nullity foundation advocates that finding fault should be removed from divorce law. There is a mismatch between law and practice that needs to be addressed.

By using the case of Stevens v Stevens [1979] 1 WLR 885 to look at the cumulative, Judge Tolson concluded that Mrs.Owens was more insensitive than most wives were. However, in doing so, the effect that the continued behavior would have on Mrs.Owens was overlooked. In the Supreme Court's statement, the conduct of the respondent could not be the cause of themarriage breaking down while referring to the case of Buffery v Buffery [1988] 2 FLR 365 and Stevens v Stevens [1979] 1 WLR 885. This fact was not argued or presented well in this case. In this context, there is an element of subjectivity and objectivity. Both Lord Wilson and Lord Munby LJ agreed to the court of appeal judgment, which stated that "I apply an objective test - what would the hypothetical reasonable observer make of the allegations - but with subjective elements."The court approached this part from the effect the conduct has on the petitioner but focused on the disposition of the petitioner while paying attention to her personality. It, therefore, shows there is an incorrect interpretation to the section the Matrimonial Causes Act 1973 and that unreasonable behavior is a misinterpretation of this section. The deeds quoted inpart should be shown to an extremity such that the petitioner is unable to live reasonably with the respondent. Additionally, the court's disregard for the conduct as the cause of the breakdown shows that it is not considered a factor in finalizing the petition and the effect the behavior have should be applied subjectively but not objectively.

The argument that the divorce law is in a strange place and the call for reforms is the lack of the Owens case to conform to the modern loving realities. The allegations of the husband's conduct were considered exaggerated and weak, but they should have been recognized as a possible cause for the marriage breakdown. Unreasonable behavior should be so much sought because the effects can be detrimental to the petitioner in causing stress and emotional disruption as well as the finances. Lady Hale commented that the decision was made, 'with no enthusiasm whatsoever,' (Morgan 2019, 100). The fact that the rule right showed that there is a crisis in divorce law in England and Wales. The war on advocating for no-fault divorce rages on. The argument against the introduction of the bill is that the marriage institution should be protected to avoid family breakages.

Every year, over a million American children and young adults face the effects of divorce of their parents. This caused harm that is irreparable to the ones involved but the most affected are the children. Although in some cases, separation may benefit some individuals, it results to a temporary reduction in an individual's life quality and puts some people on a descending trajectory from which they might probably never fully recover.

Baroness Butler-Sloss presented a Lords Private Member's Bill in July 2018 that obligated the Lord Chancellor to re-evaluate divorce law. The bill would take into con...