Who's Fault Divorce?


As the law stands at the moment in England and Wales, the dissolution of a marriage under the Matrimonial Causes Act 1973 can only be brought about under certain circumstances.

Who's Fault Divorce?

The circumstances are as follows:
  1. The admitted adultery of one party and this only applies to heterosexual marriages
  2. The parties having lived separate and apart for a continuous period of two years, provided that both agree
  3. The parties having lived separate and apart for a continuous period of five years, where consent is not required
  4. Desertion for a continuous period of two years
  5. One party having behaved in such a way as it would not be reasonable to expect the other to remain living with them.

The Matrimonial Causes Act has, by and large, stood the test of time and has been amended by parliament as the nature of marriage and society has changed and developed over the last forty or so years. In particular, the Act has been amended to cover same sex marriages and allow a broader range of financial provision to be made following the breakdown of a marriage, most notably in the range of orders that can be made against pensions.

The judiciary, too, have put their gloss on the Act, in particular dealing with the financial consequences of the marriage and some of their decisions have made it into the public consciousness, such as White –v- White (which introduced the 'yardstick of equality' to the court's toolbox) and Radamacher, the latter case dealing with a pre-nuptual agreement.

The one area of the Act that has not changed, however, is the grounds for the dissolution of the marriage itself. A recent survey by Resolution, the findings of which have been published in the Independent, show that 27% of couples interviewed who had to rely on a 'behaviour' petition fabricated the evidence (which they confirmed to the court to be true) to bring about the dissolution of their marriage.

Quite apart from the awkward question of whether or not perjury proceedings should follow, this survey raises a more fundamental question about the nature of marriage and what should happen when one comes to an end. Some, sadly, will break down in mutual revulsion, acrimony and a desire for retribution. It is the role of the family lawyer in those cases to try to make a wretched process as calm and objective as possible: not turn it into the divorce court's equivalent of the Somme.

Adult and Clear-Sighted

There are couples, however, who are adult and clear-sighted enough to accept their marriage is over: they simply fall out of love, or accept their marriage has run its course. Neither blames the other particularly. Indeed there can still exist a degree of mutual affection and respect. They just want the marriage to be over and to then move on. Negotiation might have to take place for a fair financial settlement to be reached, but that misses the point.

A mechanism should be there to allow such couples to end their marriage at a time of their choosing without either having to find fault with the other where none might be or in the alternative have to remain in matrimonial limbo for two years before issuing a petition.

Arguments can be made such a proposal undermines the sanctity of marriage and is symptomatic of our 'throw-away' society and the need for instant gratification. This is not the case. Marriage might be an estate made in heaven, buts its tenants are unquestionably human and subject to all the frailties and shortcomings this means. Humanity also brings with it the ability to commit to a marriage that can be lifelong. In the words of Baz Lurman, you may well 'dance the funky chicken at your golden wedding anniversary'.

For those who don't however the compassion and acceptance that humanity also brings should mean their marriage can end without recrimination and remorse.

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