FAMILY LAW: SEMINAR 2

The purposes of this seminar are:

 To understand the reasons for recent reform in this area.

 To assess arguments in favour of retaining a fault based element in divorce
law.

Essential Reading:

 Joanna Miles, Daniel Monk and Rebecca Probert ‘Irretrievably Broken'?

Introducing the Life-Story of the Divorce Reform Act 1969’ in Fifty Years of
the Divorce Reform Act 1969 (Bloomsbury, 2022) 3, especially pp. 7-17. This
book is available as an e-book via the library catalogue. EDITORIAL-
OUTLINE
 The summary report of Trinder et al’s Finding Fault? Divorce Law and
Practice in England and Wales:
https://www.nuffieldfoundation.org/sites/default/files/files/Finding_Fault_sum
mary_report_v_FINAL(1).pdf (note that the full report, for those who are
interested, can be found at
https://www.nuffieldfoundation.org/wp-content/uploads/2019/11/Finding_Fau
lt_full_report_v_FINAL1.pdf, but you will not be expected to have read this
for the seminar). USEFUL TO SHOW PROBLEMS WITH THE LAW
 Charlotte Bendall, ‘Should we welcome an end to the blame game?:
Reflecting on experiences of civil partnership dissolution’ (2020) 61 Journal
of Divorce and Remarriage 344-365. FEMINIST THEORY
 Advice Now, How to get a divorce or end a civil partnership without the help
of a lawyer: https://www.advicenow.org.uk/guides/how-get-divorce-or-end-
civil-partnership-without-lawyer.

For discussion:

 What were the key problems with the previous law of divorce, which led to
the introduction of the Divorce, Dissolution and Separation Act 2020?
 Where do you think that the idea that divorce should be based on ‘fault’
originated from in the first place?
 Summarise the main reforms introduced by the 2020 Act.
 Does the new law make the divorce process ‘harder’ or ‘easier’? On a more
general level, what kinds of points might you raise to argue in favour of
‘harder’ or ‘easier’ divorce? Does the law now get the balance right?
 What criticism might we make of the new law, from the perspective of a
possible need for an outlet to apportion ‘blame’ on marital breakdown?

- Key points:
Look at the unequal distribution of power. Feminist theory can apply here.

- Look at moral and social arguments.

 - The new law removed fault based, the concept to reject and conditional orders
and then final order.

1. What were the key problems with the previous law of divorce, which led to the
introduction of the Divorce, Dissolution and Separation Act 2020?

Look to Research, Case Law and Proposed reform.

- The previous divorce law was largely reliant on fault-based grounds for divorce.
This meant couples were required to prove fault such as adultery or
unreasonable behaviour or live separately for a significant period of time before
obtaining a divorce.

- Women and matrimonial courts. Women were seen as property of a man and
therefore had to ask for permission to ‘leave’ the marriage. Ecclesiastical courts
influenced the previous divorce law.

- France and Scotland moved on in terms of this fault-based system in their

jurisdiction.

- This fault-based system requirement for one party to prove fault meant that
parties were often led to exaggeration or fabrication of claims just to satisfy
legal requirements. As a result, tensions and conflict could have been escalated
between the parties. The evidence would have to fit in the perimeters of divorce
grounds. Money can be an issue in providing grounds for fault and therefore
leading to parties in unhappy marriages. The law is unnecessarily creating
conflict.

- Since divorce is a length and contentious proceeding, it can ultimately have a

detrimental impact on children by exposing them to prolonged conflict between
the parents. The focus on finding and proving fault can shift attention from the
wellbeing of the children.

- The legal requirements were looking at: duration of marriage, the timeframe of
the divorce proceedings, the type of fault, unreasonable behaviour. Is this
respecting autonomy of the parties. The other party can exercise coercive
control, when one party refuses divorce (Owens and Owens). In the judgement
of this case, Baronness Hale found this case troubling and it is not for us to
change the law, it is only there for us to interpret. Lord Wilson also contributed
to the judgement.

- This case is pivotal the government had a consultation called reducing family
conflict. Divorce Law Review Bill leading up to 2018 Law (was asking for one
ground for divorce to show breakdown without the need for evidence).

- It makes divorces more difficult in the sense that it is less amicable and that the
parting will be emotionally and financially draining for the parties involved.
 - The previous law did not treat the parties equitably. So in some cases, one party
would have had to admit fault even though it could have been a mutual decision
that the marriage was breaking down.

2. Where do you think that the idea that divorce should be based on ‘fault’ originated
from in the first place?

- The concept of ‘fault’ has historical roots in religious, moral and social
traditions.

- Religious influences have viewed marriage as a sacred institution. This meant

that divorce was discouraged or even prohibited. If it was allowed then it
required proof of wrongdoing, adultery, abandonment, abuse in order to justify
the dissolution of the marriage. Religious texts and teachings played a significant
role in shaping societal attitudes towards divorce.

- Societal norms are influenced by religious beliefs and ultimately played a role in
shaping attitudes towards marriage and divorce. Divorce was stigamtised and
individuals seeking divorce were often judged morally if they could not prove
fault. The concept was reinforced by these societal judgements.

- Property and Inheritance Laws often favoured the notion of keeping assets
within families and linages. Divorce would threaten the stability of property and
wealth distribution. By requiring fault-based grounds for divorce, it provided
means for protecting family assets. There is a strong link between property law
and family divorce law.

- Patriarchal traditional societies often placed women in the subordinate position

within a marriage. This was exaggerated by fault-based divorce laws which
sometimes provides women means to escape unhappy marriages but at the cost
of proving fault, which was challenging and would further victimise them.

- English Common Law influenced the development of divorce laws. Fault-based

divorce systems were established through legal precedents therefore making it
difficult to shift away from these practices without significant legal reforms. Over
time, social attitudes and legal systems have evolved, leading to the introduction
of no-fault divorce laws in many jurisdictions.

- Previous caselaw was male dominated that was used to silence women. So, law
was based majorly on what men had to say in a marriage. Perhaps there is still a
element of this today? Feminist literature is divided here, where there is tension
here. Rosemary Auchmuty looks into this.

- Traditional gender split. It was supposed to be tailored to men. Divorce was seen
as a punishment for fault, Miles looks into it.

3.

4. Mariage and Divorce is complicated and required emotional outlet.

5. There is research for Charlotte that shows blame is crucial in the divorce process
then it helps emotionally and helps one recover. The opportunity is removed
forever. The fault is there to give personal meaning and empowerment. Civil
partnerships and not having fault made it harder to move on.