The Law Commsson (LAW COM. No. 192) FAMILY LAW THE GROUND FOR DIVORCE Lad before Parlament by the Lord Hgh Chancellor pursuant to secton 3(2) of the Law Commssons Act 1965 Ordered by The House of Commons to be prnted 31 October 1990 636 LONDON: HMSO E15.00 net
The Law Commsson was set up by secton 1 of the Law Commssons Act 1965 for the purpose of promotng the reform of the law. The Commssoners are- The Honourable Mr Justce Peter Gbson, Charman Mr Trevor M. Aldrdge Mr Jack Beatson Mr Rchard Buxton, Q.C. Professor Brenda Hoggett, Q.C. The Secretary of the Law Commsson s Mr Mchael Collon and ts offces are at Conquest House, 37-38 John Street, Theobalds Road, London WClN 2BQ. 9".. 11.-
THE GROUND FOR DIVORCE CONTENTS PART I: INTRODUCTION Paragraph 1.1 Page 1 PART 11: THE CASE FOR REFORM The present law and practce Crtcsms of the present law and practce: () It s confusng and msleadng () It s-dscrmnatory and unjust () It dstorts the partes barganng postons (v) It provokes unnecessary hostlty and btterness (v) It does nothng to save the marrage (v) It can make thngs worse for the chldren Concluson 2.1 2.7 2.8 2.12 2.15 2.16 2.17 2.19 2.21 PART 111: MODELS FOR REFORM The ams of the law The optons n Facng the Future The rejected optons: () Return to fault () Inquest () Immedate unlateral demand (v) Mutual consent The new feld of choce: () A mxed system () Separaton () Consderaton and reflecton Easer or harder? Concluson 3.1 3.5 3.6 3.6 3.10 3.12 3.13 3.15 3.16 3.20 3.26 3.46 3.48 10 11 11 11 12 12 13 13 13 14 16 20 20 PART IV EFFECT ON OTHER MATRIMONIAL REMEDIES 4.1 Judcal separaton: 4.2 Background 4.2 The ground 4.12 Procedure and proof of breakdown Integraton of dvorce and separaton procedures Fnancal Provson n Magstrates Courts: 4.15 4.18 4.20 Background 4.20 Concluson 4.27 21 21 21 22 23 23 24 24 25... 111
PART V v Termnology: THE PROCEDURES IN DETAIL Petton and Pettoner Decree Judcal separaton Neutral separaton or dvorce order Intaton of the perod of consderaton and reflecton: The statement of martal breakdown - Jont and sole statements In or out of court? Formaltes Accompanyng documents The perod of consderaton and reflecton: Objectves Length Counsellng, conclaton and medaton: Voluntary or Mandatory? Referral for an explanaton of conclaton or medaton Adjournment for partcpaton Prvlege: Reconclaton Conclaton and Medaton Extent of the prvlege Legal professonal prvlege Prelmnary assessment by the court Orders durng the perod Extendng the perod Abrdgng the perod Reconclaton: Suspenson of the perod durng an attempted. reconclaton Wthdrawal Applcaton for a dvorce or separaton order Grave fnancal or other hardshp Makng the dvorce or separaton order Poston where the partes have not been marred for one year Lapse of proceedngs Cqnverson of separaton to dvorce Paragraph 5.1 5.2 5.2 5.4 5.5 5.7 5.8 5.9 5.10 5.12 5.15 5.21 5.25 5.25 5.27 5.29 5.33 5.38 5.39 5.40 5.40 5.43 5.45 5.49 5.50 5.53 5.56 5.62 5.66 5.66 5.68 5.69 5.72 5.78 5.82 5.85 5.86 Page 26 26 26 26 26 27 27 27 27 27 28 30 31 31 31 32 33 35 35 35 35 36 36 37 38 39 40 42 43 43 43 43 44 46 47 47 47
Paragraph PART VI: FINANCIAL PROVISION AND PROPERTY ADJUSTMENT ORDERS-FURTHER RECOMMENDATIONS 6.1 Interm perodcal payments orders 6.1 Varaton of settlement of property orders 6.2 Varaton of fnancal provson orders 6.8 Page 49 49 49 50 PART VII: COLLECTED RECOMMENDATIONS 7.1 52 APPENDIX A: D-raft Dvorce and Separaton Bll, wth Explanatory Notes APPENDIX B: Organsatons and Indvduals who responded to Facng the Future APPENDIX C: Court Record Study APPENDIX D: The Publc Opnon Survey 60 162 166 180 ' V
THE LAW COMMISSION Item 6 of the Fourth Programme: Famly Law THE GROUND FOR DIVORCE To the Rght Honourable the Lord Mackay of Clashfern, Lord Hgh Chancellor of Great Brtan PART I INTRODUCTION 1.1 There s wdespread concern about the current prevalence of dvorce n ths country and the consequences whch ths can have both for the couple concerned and for ther chldren. There s also concern that the present dvorce process may be makng these worse. There have been many calls for reform of the law, and from many quarters. In order to stmulate debate about the shape such a reform mght take, we publshed n May 1988, Facng the Future-A Dscusson Paper on the Ground for Dvorce.2 Ths examned n some detal the current law and practce, the crtcsms whch mght be made of them, and the varous optons for reform. A shorter summary of the ssues was prepared for general d~trbuton.~ These provoked a large response, from a wde varety of groups and ndvduals, ncludng those organsatons professonally nvolved wth famles undergong martal breakdown, separaton or dvorce; relgous bodes; and many wth personal experence of the present system. A lst of those who responded appears as Appendx B to ths report and we are most grateful to them all. 1.2 At the same tme, we conducted a study of dvorce fles n the Prncpal Regstry of the Famly Dvson and n 18 dvorce county courts across the country, n order to dscover a lttle more about the workng of the system n practce. A bref account of ths study appears as Appendx C, and we shall refer to ts fndngs n several places n ths report. We are most grateful to the staff of the courts concerned, and to the Regstrars whose vews we sought, for all the help they have gven us. 1.3 The vews of those wth personal experence of the system are well represented, not only amongst respondents to Facng the Future, but also n academc research ~tudes.~ We also thought t mportant to canvass the vews of a representatve crosssecton of members of the general publc. From tme to tme there are surveys, both popular and academc, askng basc questons about atttudes to marrage and d~orce;~ but there has been no study specfcally desgned both to explan the present law of dvorce and to present some of the complex and senstve ssues nvolved to people who may never have consdered them n detal before. Accordngly, we commssoned Publc Atttudes Surveys Ltd. to conduct a publc opnon survey, along wth a smlar nqury nto the rules governng dstrbuton on ntestacy! Ths, nstead of smply lstng the dsadvantages of the present law and askng whether t should be changed, attempted to dentfy what people see as ts good and bad features, to assess the acceptablty of a varety of bases for dvorce and to probe two possble reforms n more depth. In ths way we were able to obtan qute a detaled pcture of the values and atttudes of a crosssecton of the adult populaton. A report of the survey appears as Appendx D. 1.4 Such surveys can only be part of a wder nqury n whch consderatons of moral and legal prncple, as well as the vews of nformed professonals, must play the E.g. from the Law Socety s Famly Law Sub-commttee, n A Better Way Out, (1 979) and A Better Way Out Revewed, (1 982); n Parlament durngdebateon the MatrmonalandFamly Proceedngs Bll, Hansard(H.C.), 13 June 1984, vol. 6 1, col. 963; the general consensus of respondents vews reported n the Report (the Booth Report) of the Matrmonal Causes Procedure Commttee (the Booth Commttee) chared by the Hon. Mrs. Justce Booth, (1985), para. 2.9; by researchers G. Davs and M. Murch, n Grounds for Dvorce, (1988). * (1 988), Law Com. No. 170. Facng the Future? A Summary of the Issues arsng from the Law Commsson s Dscusson Paper on the Ground for Dvorce (1 988). Prncpally, n ths connecton, the studes reported n Davs and Murch, op. ct.; also M. Murch, Justce and Werfare n Dvorce, (1 980); N. Hart, When Marrage Ends: A Study n Status Passage, (I 976); J. Burgoyne and D. Clark, Makng a Go of It, A Study of Stepfamles n Sheffeld, 1984); A. Mtchell, Chldren n the Mddle, (1985); Y. Walczak and S. Burns, Dvorce: The Chld s Pont of Vew, (1984); G. Davs and M. Roberts, Access to Agreement, (1988); G. Davs, Partsans and Medators, (1988). E.g. The Brtsh Publc Atttudes Survey, n Brtsh Socal Atttudes, The 1987 Report, (1987), pp. 122-123, Table 6.1; the Natonal Opnon Poll Survey, conducted for the Mal on Sunday, 5 March 1989. Dstrbuton-on Intestacy (1989), Law Corn. No. 187, Appendx C. &, 1
larger part. Our consultatons have ncluded dscussons, both formal and nformal, wth representatves of many of the organsatons and agences actve n ths feld. We are partcularly grateful to the Standng Commttee for Inter-Dscplnary Co-operaton n Famly Proceedngs, for organsng a conference at whch most of those bodes were represented. Ths provded a broadly-based forum for dscusson of the ssues amongst nformed people wth a wde varety of perspectves, whch we found especally helpful. 1.5 Our nqures have made three thngs absolutely plan. Frst, of the exstence of the problem there can be no doubt. The response to Facng the Future overwhelmngly endorsed the crtcsms of the current law and practce whch t contaned. The present law s confusng and unjust. It now fulfls nether of ts orgnal objectves. These were, frst, the support of marrages whch have a chance of survval, and secondly, the decent bural wth the mnmum of embarrassment, humlaton and btterness of those that are ndubtably dead. 1.6 Secondly, t s clear that those basc objectves of a good dvorce law, as set out by our predecessors n 1966, stll commandwdespread support, dffcult though t may be to acheve them n practce. In 1990, however, any summary would nclude two further objectves: to encourage so far as possble the amcable resoluton of practcal ssues relatng to the couple s home, fnances and chldren* and the proper dscharge of ther responsbltes to one another and ther chldren; and, for many people the paramount objectve, to mnmse the harm that the chldren may suffer, both at the tme and n the future, and to promote so far as possble the contnued sharng of parental responsblty for them.g 1.7 Thrdly, there was overwhelmng support for the vew expressed n Facng the Future that rretrevable breakdown of the marrage should reman the fundamental bass of the ground for dvorce.1 Ths means, frst, that dvorce should contnue to be restrcted to those marrages whch have clearly broken down and should not be avalable for those whch are capable of beng saved; and secondly, that any marrage whch has broken down rretrevably should be capable of beng dssolved. The crtcsm s not of the prncple tself, but of the legal rules and processes by whch the rretrevable breakdown of a marrage s at present establshed n the courts. 1.8 Our consultatons have led us to the frm concluson that there s one partcular model for reform whch s to be preferred. It has not only receved the support of the great majorty of those who responded to Facng the Future, but has also been shown by our publc opnon survey to be acceptable to a consderable majorty of the general populaton. Ths was the model descrbed n Facng the Future as dvorce as a process over tme but here descrbed as dvorce after a perod of consderaton and reflecton, colloqually a coolng-off perod or breathng space. In the lght of ths concluson, t was decded to depart from our prevous practce n ths area and prepare a draft Bll to gve effect to ths proposal. We have therefore worked t out n a great deal more detal than would otherwse have been the case. We hope that our recommendatons have thereby been mproved: we hope also that t wll help others to decde whether or not they should be mplemented. They consttute n many ways a radcal departure from the present law: one desgned to retan what are seen as the strengths of the present system whle meetng the most serous crtcsms. 1.9 In Part I1 of ths report we summarse the man advantages and dsadvantages of the present law and practce. In Part I11 we dscuss the varous possble models for reform n the lght of the response to consultaton, concludng wth a recommendaton n favour of dvorce after a perod of consderaton and reflecton. In Part IV we consder the mplcatons of that recommendaton for other matrmonal remedes whch depend upon the same grounds. In Part V we explan the detals of the procedures proposed and n Part VI we make some ncdental recommendatons about fnancal provson and property adjustment orders. Part VI1 contans a summary of our recommendatons and the draft Bll to gve effect to our proposals appears, wth explanatory notes, at Appendx A. Reform of the Grounds of Dvorce-The Feld of Choce (1966), Law Corn. No. 6, para. 120( 1). * An objectve lad down n the terms of reference of the Booth Commttee who were asked to recommend procedural reforms whch would, nter ala, mtgate the ntensty of dsputes and encourage settlements; see Booth Report, para. 1.1. Objectves whch are fundamental to the reforms recently enacted n the Chldren Act 1989. lo Law Com. No. 170, para. 6.2 both n The Feld of Choce (1966), Law Corn. No. 6, and n The Fnancal Consequences of Dvorce (1981)>-.Law Corn. No. 112. 2
The present law and practce PART I1 THE CASE FOR REFORM 2.1 Under the Matrmonal Causes Act 1973, the sole ground for dvorce s that the marrage has broken down rretrevably. However, a pettoner can only establsh ths by provng one or more of fve facts.* In summary, these are: (a) that the respondent has commtted adultery and (whether for ths or any other reason3) the pettoner fnds t ntolerable to lve wth hm; (b) that the respondent has behaved n such a way that ths pettoner cannot reasonably be expected to lve wth hm;4 (c) that the respondent has deserted the pettoner for at least two years out of the prevous two and a half;5 (d) that the partes have lved apart6 for at least two years out of the prevous two and a half7 and the respondent consents to a dvorce; (e) that the partes have lved apart for at least fve years out of the prevous fve and a half.8 2.2 In theory, the court must nqure as best t can nto the facts alleged.g In practce, more than 99% of dvorces are undefended. O All but a tny number of undefended cases1 are proved under the so-called specal procedure where the petton and supportng affdavts are scrutnsed by a Regstrar and the decree s formally pronounced by the Judge n relance on the Regstrar s certfcate. Our examnaton of court fles n a wde selecton of courts around the country revealed that the Regstrar s scutny may well be effectve n pckng up techncal errors n procedure or presentaton but s unlkely to reveal defects of substance, partcularly n behavour cases.12 There are also regonal and even local varatons n the extent to whch corroboratve evdence s requred. Ths s not to suggest that the old system of formal oral hearngs of undefended cases was any more effectve:13 rather, that wthout an extensve and expensve court nvestgaton branch t s n practce mpossble adequately to test the facts f the respondent, for whatever reason, decdes not to do so. The dvorce tself s granted n two stages: frst, a decree ns pronounced by the Judge, and second, a decree absolute ssued by the court at least sx weeks later.14 2.3 In practce, roughly 71.4% of dvorces are granted to wves and 73.3% of dvorces are based ether on adultery (fact (a)), or on behavour (fact (b)).15 The proporton based on behavour has been rsng steadly. The use of the fve facts vares accordng to the I Matrmonal Causes Act 1973 (MCA), s.l(l). * MCA, s.1(2). Cleary v. Cleary [I9741 1 W.L.R. 73. The leadng cases are Lvngstone-Stallard v. Lvngstone-Stallard [ 19741 Fam. 47; 0,Nell v. O Nell [1975] 1 W.L.R. 11 18; and Thurlow v. Thurlow [I9761 Fam. 32. MCA, s.2(5) provdes that perods of cohabtaton totallng less than sx months are to be gnored provded that the total perod apart s two years. MCA, s.2(6) provdes that partes are lvng apart unless they are lvng wth each other n the same household; t s possble to conduct two separate households under the same roof, Mouncer v. Mouncer [ 19721 1 W.L.R. 321. MCA, s.2(5). Ibd. MCA, s.1(3). lo It s not possble to dentfy the exact proporton from publshed statstcs; the Judcal Statstcs, Annual Report 1989, (1990) Cm. 1154, Tables 5.5 and 5.6, show 635 defended dvorces lsted for tral durng 1989, 394 dsposed of, 280 after tral, and 285 decrees granted, out of a total of 151,309 decrees ns that year. II The number of undefended cases set down to be heard n open court by.a judge s not collected centrally; there was probably only one n our study of 476 dvorce and separaton cases, see Appendx C, para. 33. lz Appendx C, paras. 26 et seq. l3 Indeed, t s possble that an unhurred scrutny of the documents, wth power to call for further nformaton f requred, s more effectve than a fve-mnute oral hearng durng whch the pettoner was asked a seres of leadng questons by counsel or solctor and the result was a foregone concluson; see E. Elston, J. Fuller and M. Murch, Judcal Hearngs of Undefended Dvorce Pettons, (1 975) 38 M.L.R. 609. l4 MCA, ss.1(5), 9(2); Matrmonal Causes (Decree Absolute) Order 1972. There s power to reduce the perod, but ths wll very rarely be necessary, Practce Drecton [ 19771 1 W.L.R. 759. l5 O.P.C.S., Marrage and Dvorce Statstcs 1988, (1990), Table 4.6: Fact proven at dvorce 1988. These fgures relate to decrees absolute. 3
pettoner s sex, age, socal class and whether or not there are dependent chldren.16 Sometmes these varatons reflect genune dfferences n martal behavour: t s, perhaps, unlkely to be a concdence that 87% of behavour decrees are granted to wves. But sometmes they reflect qute dfferent consderatons: adultery or ntolerable behavour are the only facts on whch dvorce proceedngs may be started mmedately the breakdown occurs.17 Ether may therefore be used, not because the behavour s any worse than n other cases, or because t s the real reason for the dvorce, but because the couple have agreed to end ther marrage as quckly as possble, or because one of them wshes or needs to brng proceedngs quckly n order to obtan rehousng, mantenance or ncome support, and to setttle the chldren s future. It appears that separaton s least used by those who fnd t dffcult to lve apart because of housng or fnancal problems. * Even f the partes can afford to lve apart, the ncreasng use of adultery and behavour suggests that many fnd two years too long to wat. 2.4 Before turnng to the crtcsms of the present law, we should bear n mnd that t also has strengths. Our publc opnon survey revealed a large measure of publc support for ts prncpal features: thus 72% agreed that t was good that anyone who wants a dvorce can get one sooner or later, although 71% found the present fve year perod too long; 83% agreed that t was good that couples who dd not want to put the blame on one of them dd not have to do so; and 84% agreed that t was good that one could begn proceedngs mmedately f the other had commtted adultery or behaved nt~lerably.~~ Furthermore, dvorce under both fault and no-fault grounds s obvously acceptable to a very hgh proporton of people. 67%, ncludng 71% of dvorced people, found dvorce under the present law ac~eptable.~~ At the very least, we can confdently repeat the asserton n Facng the Future that the present law s a consderable mprovement on the prevous poston 21 whch reled almost entrely upon proof of fault.22 2.5 It s not surprsng the respondents to our survey saw strengths n some features of the present law and objectons to others, or that they found a varety of dfferent bases for dvorce acceptable, and n the end were farly evenly dvded over whether the law should be changed. We were anxous not to present them wth smple questons wth easy answers, but to tease out some of ther underlyng values and objectves. They clearly found ths a challengng process and came to share some of the ndecson whch affects many thnkng people n ths dffcult area. As the Archbshop of York has observed, Over the last 12 to 15 years the Church of England has been gong through agones on the subject of dvorce... t s not a bad thng that the Church of England has been unable to come to any clear decson because there are no easy answers. To go on beng n agony about ths at least represents publcly that there s stll a problem to be dealt 2.6 Respondents to Facng the Future were n no doubt at all that there s a problem to be dealt wth. Only three of themz4 consdered that the present law was workng satsfactorly. The overwhelmng majorty agreed wth the crtcsms made of the current system and supported the case for reform. In dong so, there were some who attached greater weght to the am of buttressng the stablty of marrage and famly lfe and others who were more concerned that the law should mnmse btterness and l6 J. Haskey, Grounds for Dvorce n England and Wales-A Socal and Demographc Analyss, (1986) 18 J. Bosoc. Sc. 127; Davs and Murch, op. ct., pp. 78-80; see also Appendx C, paras. 4, 5. l7 A petton cannot be based upon adultery f the couple have lved together for a total of more than sx months snce the pettoner learned of t, MCA, s.2(1); there s no equvalent n behavour cases, but the longer the pettoner wats the more lkely t s that he or she can reasonably be expected to go on lvng wth the respondent, Kufz v. Kufz [1972] 1 W.L.R. 955; cf. Bradley v. Brud/ejj [1973] 1 W.L.R. 1291, Court v. Court [I9821 Fam. 105; cohabtaton of less than sx months s gnored n both cases, MCA, s.2(2) and (3). I.e. by pettoners n lower soco-economc groups and/or wth young chldren; Haskey, op. ct.; Davs and Murch, op. ct., pp. 78-80; Appendx C, paras. 4, 5. l9 Appendx D, Tables 15, 16. 2o Appendx D, Tables 17, 18. Law Com. No. 170, para. 3.47. 22 The grounds were adultery, cruelty, three years deserton, fve years ncurable unsoundness of mnd, and rape, sodomy or bestalty by the husband; Matrmonal Causes Act 1965, s. 1 (1). Then as now, however, a substantal majorty were undefended. 23 Hs Grace, The Lord Archbshop of York, Dr. John Hapgood, DD, Conclaton and Reconclaton, Address to the Annual General Meetng of the Natonal Famly Conclaton Councl, 28 September 1989 (N.F.C.C., 1990), pp. 1-2. 24 One Crcut Judge, one County Federaton of Women s Insttutes, and one group from another County Federaton of Women s Insttutes. : 4
dstress for the partes and ther chldren. All were agreed that the law does nether satsfactorly at present. Crtcsms of the present law and practce 2.7 The crtcsms of the present law, and n partcular ts falure to lve up to ts orgnal objectves, were set out at length n Facng the Future.25 There s no need for us to repeat them here, but we should lke to draw attenton to the features whch seem to us most objectonable. These, not only n our vew but also n that of our respondents, add up to a formdable case for reform. () It s confusng and msleadng 2.8 There s a consderable gap between theory and practce, whch can only lead to confuson and lack of respect for the law. Indeed, some would call t downrght dshonest. There are several aspects to ths. Frst, the law tells couples that the only ground for dvorce s rretrevable breakdown, whch apparently does not nvolve fault. But next t provdes that ths can only be shown by one of fve facts, three of whch apparently do nvolve fault. There are several recent examples of dvorces beng refused despte the fact that t was clear to all concerned that the marrage had ndeed rretrevably broken down.26 The hardshp and pan nvolved for both partes can be very great. 2.9 Secondly, the fact whch s alleged n order to prove the breakdown need not have any connecton wth the real reason why the marrage broke down.27 The partes may, for example, have separated because they have both formed dfferent assocatons, but agree to present a petton based on the behavour of one of them, because nether wshes ther new partner to be publcly named.28 The sex, class and other dfferences n the use of the facts make t qute clear that these are chosen for a varety of reasons whch need have nothng to do wth the realty of the case. Ths s a major source of confuson, especally for respondents who do not agree wth the fact alleged.29 As has long been sad, whatever the clent s reason for wantng dvorce, the lawyer s functon s to dscover 2.10 The behavour fact s partcularly confusng. It s often referred to as unreasonable behavour, whch suggests blameworthness or outrght cruelty on the part of the respondent; but ths has been called a lngustc trap,31 because the behavour tself need be nether unreasonable nor blameworthy: rather, ts effect on the pettoner must be such that t s unreasonable to expect hm or her to go on lvng wth the respondent, a sgnfcantly dfferent and more flexble concept whch s obvously capable of varyng from case to case and court to Although the test s to be appled by an objectve reasonable outsder, the character and personalty of the pettoner are partcularly relevant n decdng what conduct he or she should be expected to bear.33 2.1 1 Fnally, and above all, the present law pretends that the court s conductng an nqury nto the facts of the matter,34 when n the vast majorty of cases t can do no such thng.35 Ths s not the fault of the court, nor s t probably any more of a problem under the present law and procedure than t was under the old. It may be more dffcult to evaluate the effect of the respondent s behavour from the papers than from the pettoner s account n the wtness but t has always been dffcult to get at the 25 Law Corn. No. 170, Part 111. 26 E.g. Beasley v. Beasley, reported n The Daly Telegraph on 16 Aprl 1986; Btfffery v. Buflery [ 198812 F.L.R. 365; Chlton v. Chlton, reported n The Daly Mal on 18 January 1990. 27 Stevens v. Stevens [1979] 1 W.L.R. 885. 28 As generally requred by MCA, s.49; see further Appendx C, paras. 40-42. 29 Davs and Murch, op. ct., esp. ch. 3. 30 R. Chester and J. Streather, Cruelty n Englsh Dvorce: Some Emprcal Fndngs, (1972) 34 Jo. of Marrage and the Famly, 706 at p. 712; see also Davs and Murch, op. ct., ch. 5. 31 Bannster v. Bannster (1980) 10 Fam. Law 240, per Orrnrod L.J. 32 See further Appendx C, paras. 44-49. 33 E.g. Astwood v. Astwood (1981) 131 N.L.J. 990. 34 MCA, s.1(3).. 35 See para. 2.2 above and Appendx C. 36 The Booth Report, para. 2.17, observes that In the great majorty of cases the court s qute smply n no poston to make fndngs of fact or, n a case based on behavour, to evaluate the effect.... : 5
truth n an undefended case. Moreover, the system stll allows, even encourages, the partes to le, or at least to exaggerate, n order to get what they want. The bogus adultery cases of the past may have all but dsappeared, but ther modern equvalents are the flmsy behavour petton37 or the pretence that the partes have been lvng apart for a full two years. In that wder feld whch ncludes consderatons of truth, the sacredness of oaths, and the ntegrty of professonal practce,38 the present law s just as objectonable as the old. () It s dscrmnatory and unjust 2.12 83% of respondents to our publc opnon survey thought t a good feature of the present law that couples who do not want to put the blame on ether of them do not have to do but these couples have to have lved apart for at least two years. Ths can be extremely dffcult to acheve wthout ether substantal resources of one s own, or the co-operaton of the other spouse at the outset, or an ouster order from the court. A secure councl house tenancy, for example, cannot be re-allocated between them wthout a court order whch s only obtanable on dvorce or judcal ~eparaton.~~ The law does recognse that t s possble to lve apart by conductng two separate households under the same roof.41 In practce, ths s mpossble n most ordnary houses or flats, especally where there are chldren: t nevtably requres the couple to co-operate n a most unnatural and artfcal lfestyle. It s unjust and dscrmnatory of the law to provde for a cvlsed no-fault ground for dvorce whch, n practce, s dened to a large secton of the populaton. A young mother wth chldren lvng n a councl house s oblged to rely upon fault whether or not she wants to do so and rrespectve of the damage t may do. 2.13 The fault-based facts can also be ntrnscally unjust. Justce n ths context has tradtonally been taken to mean the accurate allocaton of blameworthness for the breakdown of the marrage. Deserton s the only fact whch stll attempts to do ths: t requres that one party has brought about ther separaton wthout just cause or consent. Deserton, however, s hardly ever used, because ts place has been taken by the two year separaton fact. A fndng of adultery or behavour certanly need not mean that the respondent s any more to blame than the pettoner for the breakdown of the marrage. If one has commtted adultery or behaved ntolerably there s usually nothng to stop the other obtanng a dvorce based upon t, even though that other may have commtted far more adulteres or behaved much more ntolerably hmself or herself.42 Nor does the behavour fact always nvolve blame: t may well be unreasonable to expect a pettoner to lve wth a spouse who s mentally ll or dsabled43 or has totally ncompatble values or lfestyle.44 Even when the catalogue of complants contaned n the petton ncludes volence or other obvously blameworthy behavour, ths mght look dfferent f weghed aganst the behavour of the other. In a defended case, the pettoner s own character and conduct may be relevant n determnng the effect of the respondent s conduct upon her, but f hs conduct s suffcent, t s rrelevant that she may have behaved equally badly n some other way. In an undefended case, of course, the matter wll appear even more one-sded. 2.14 Ths nherent potental for njustce s compounded by the practcal problems of defendng or brngng a cross-petton of one s own. It s extremely dffcult to resst or counter allegatons of behavour. Defendng them requres tme, money and emotonal energy far beyond the resources of most respondents. Even f the partes are 37 See A Better Way Out, op. ct., para. 50; there s some support from the fles examned n Appendx C, at paras. 46-49. 38 Puttng Asunder, A Dvorce Law for Contemporary Socety, the Report of a Group apponted by the Archbshop of Canterbury n 1964, (S.P.C.K., 1966), para. 45. 39 AppeGdx D, Tables 15, 16. 40 Unless t s a jont tenancy and one of them voluntarly surrenders t, but ths brngs the whole tenancy to an end, London Borough of Greenwch v. McGrady (1983) 81 L.G.R. 288. 41 The test s the same as under the old law of deserton: t s not suffcent to have separate bedrooms; they must no longer share meals, washng, cleanng or other household tasks, see Mouncer v. Mouncer 119721 1 W.L.R. 321. 42 Although n Ash v. Ash [ 19721 Fam. 135, at p. 140, t was sad that a volent pettoner can reasonably be expected to lve wth a volent respondent, t mght be argued that nether could be expected to lve wth the other.. 43 Katz v. Kafz [1972] 1 W.L.R. 955; Thurlow v. Thurlow [1976] Fam. 32. 44 L-vngstone-Stallard v. Lvngstone-Stallard [ 19741 Fam. 74; Astwood v. Astwood (1981) 131 N.L.J. 990; Balraj-v. Balraj (1981) 11 Fam. Law 110. t, 6
prepared to go through ths, what would be the pont? If the marrage s capable of beng saved, a long-fought defended dvorce, n whch every ncdent or characterstc that mght amount to behavour s dragged up and examned n detal, s not gong to do ths.45 It can only serve to make matters worse and to consume resources whch are often desperately needed elsewhere, partcularly f there are chldren. Legal ad wll only be granted f the case cannot be dsposed of as an undefended sut wthout detrment to the nterests of ether party.46 As the bass on whch the dvorce s granted s usually rrelevant to ancllary ssues, the partes legal postons are unlkely to be affected whatever ther personal vews. Small wonder, then, that lawyers advse ther clents not to defend and that ther clents feel unjustly treated.47 () It dstorts the partes barganng postons 2.15 Not only can the law be unjust n tself, t can also lead to unfar dstortons n the relatve barganng postons of the partes. When a marrage breaks down there are a great many practcal questons to be decded: wth whom are the chldren to lve, how much are they gong to see of the other parent, who s to have the house, and what are they all gong to lve on? Respondents to Facng the Future told us that the battles whch used to be fought through the ground for dvorce are now more lkely to be fought through the so-called ancllary ssues whch n practce matter so much more to many people. The polcy of the law s to encourage the partes to try and resolve these by agreement f they can, whether through negotaton between solctors or wth the help of a medaton or conclaton servce.48 Questons of the future care of chldren, dstrbuton of famly assets, and fnancal provson are all governed by ther own legal crtera. It s not unjust for negotatons to be affected by the relatve merts of the partes cases on these matters. Yet negotatons may also be dstorted by whchever of the partes s n a stronger poston n relaton to the dvorce tself. The strength of that poston wll depend upon a combnaton of how anxous or reluctant that party s to be dvorced and how easy or dffcult he or she wll fnd t to prove or dsprove one of the fve facts. That mght not matter f these represented a coherent set of prncples, reflectng the real reasons why the marrage broke down; but as we have already seen, they do not. The potentally arbtrary results can put one party at an unfar dsadvantage. (v) It provokes unnecessary hostlty and btterness 2.16 A law whch s arbtrary or unjust can exacerbate the feelngs of btterness, dstress and humlaton so often experenced at the tme of separaton and Even f the couple have agreed that ther marrage cannot be saved, t must make matters between them worse f the system encourages one to make allegatons aganst the other. The ncdents reled on have to be set out n the petton. Sometmes they are exaggerated, one-sded or even untrue. Allegatons of behavour or adultery can provoke resentment and hostlty n a respondent who s unable to put hs own sde of the story on the record. We are not so nave as to beleve that btterness and hostlty could ever be banshed from the dvorce process. It s not concerned wth cold commercal bargans but wth the most ntmate of human relatons. The more we expect of marrage the greater the anger and gref when marrage ends. But there s every reason to beleve that the present law adds needlessly to the human msery nvolved. Our respondents confrmed ths. (v) It does nothng to save the marrage 2.17 None of ths s any help wth the law s other objectve, of supportng those marrages whch have a chance of survval. The law cannot prevent people from separatng or formng new relatonshps, although t may make t dffcult for people to 45 Booth Report, para. 2.6; see para. 3.43 below. 46 The Legal Ad Handbook 1990, at p. 65-66 ponts out that the polcy of the Matrmonal Causes Act 1973 s to avod defended suts n relaton to the decree unless there are reasons why the sut should be defended n the nterests of ether party, and to ensure that normally the award of a decree wll not compromse decsons over ssues relatng to the custody of, access to, and mantenance of, chldren, and the other ancllary matters. cf. McCarneyv. McCarney [1986] 1 F.L.R. 31 2, per Lord Donaldson M.R. at p. 314. 47 See partcularly Davs and Murch, op. ct., ch. 7. 48 The terms of reference gven to the Booth Commttee were to recommend reforms whch mght be made (a) to mtgate the ntensty of dsputes; (b) to encourage settlements; and (c) to provde further for the welfare of the chldren of the-famly; Booth Report, para. 1.1. 49 Davs and Murch, op. cf., chs. 6 and 7, provde ample evdence of ths. 7 d
get a dvorce. The law can also make t dffcult for estranged couples to become reconcled. The present law does make t dffcult for some couples-n practce a very small proporton-to be dvorced, but does so n an arbtrary way dependng upon whch facts may be proved. It also makes t extremely dffcult for couples to become reconcled. A spouse who wshes to be dvorced s oblged ether to make allegatons aganst the other or to lve apart for a lengthy perod. If the pettoner brngs proceedngs based on behavour, possbly wthout pror warnng, and sometmes whle they are stll lvng together,50 the antagonsm caused may destroy any lngerng chance of savng the marrage. The alternatve of two or fve years separaton may encourage them to part n order to be able to obtan a dvorce, when ther dffcultes mght have been resolved f they had stayed together. From the very begnnng, attenton has to be focussed on how to prove the ground for dvorce. The realty of what t wll be lke to lve apart, to break up the common home, to fnance two households where before there was only one, and to have or to lose that day-to-day responsblty for the chldren whch- was prevously shared, at least to some extent: none of ths has to be contemplated n any detal untl the decree ns s obtaned. If t had, there mght be some pettoners who would thnk agan. 2.18 It s a mstake to thnk that, because so few dvorces are defended, the rest are largely consensual. There are many, especally behavour cases, n whch the respondent ndcates an ntenton to defend, but does not fle a formal answer, or fles an answer whch s later wthdrawn. Some of these are a reacton to the unfarness of the allegatons made aganst them, but some reveal a genune desre to preserve the marrage.51 A defended sut s not gong to do ths, and f a case s, or becomes, undefended, there s lttle opportunty to explore the possblty of savng the marrage. An undefended decree can be obtaned n a matter of weeks.52 If both partes are contemplatng dvorce, the system gves them every ncentve to obtan a qucke decree based on behavour or separaton, and to thnk out the practcal consequences later. (v) It can make thngs worse for the chldren 2.19 The present system can also make thngs worse for the chldren. The chldren themselves would usually prefer ther parents to stay together.53 But the law cannot force parents to lve amcably or prevent them from separatng. It s not known whether chldren suffer more from ther parents separaton or from lvng n a household n conflct where they may be blamed for the couple s nablty to part.54 It s probably mpossble to generalse, as there are so many varables whch may affect the outcome, ncludng the age and personalty of the partcular chld. But t s known that the chldren who suffer least from ther parents break-up are usually those who are able to retan a good relatonshp wth them both. Chldren who suffer most are those whose parents reman n conflct.55 2.20 These ssues have to be faced by the parents themselves, as they agonse over what to do for the best. However regrettably, there s nothng the law can do to ensure that they stay together, even supposng that ths would ndeed be better for ther chldren. On the other hand, the present law can, for all the reasons gven earler, make the conflct worse. It encourages couples to fnd fault wth one another and dsputes More than a quarter of the behavour pettoners n our study were stll lvng at the same address when the petton was fled; see Appendx C, para. 23. 51 Davs-and Murch, op. cf., ch. 7. 52 Appendx C, paras. 8-12; see also O.P.C.S., Marrage and Dvorce Statstcs 1988, (1990), Table 4.8. Interval between petton and dvorce, fact proven, 1988; longer ntervals are assocated wth usng faultbased facts and havng chldren under 16. 53 A. Mtchell, Chldren n the Mddle, (1 985); Y. Walczak and S. Burns, Dvorce: the Chld s Pont of Vew, (1984); G. McCrede and A. Horrox, Voces n the Dark: Chldren and Dvorce, (1985). 54 That there are adverse effects upon some chldren from some dvorces cannot be doubted; see, e.g., J.S. Wallersten and J.B. Kelly, Survvng the Breakup, (1980); however, the clams of J.S. Wallersten and S. Blakeslee n Second Chances, (1989), as to the hgh rsk of such effects, have to be treated wth some cauton; see revews by J.B. Kelly and R. Emery, [ 19891 Fam. Law 489; and J. Ellot, G. Ochltree, M. Rchards, C. Snclar and F. Tasker, [ 19901 Fam. Law 309. One dffculty s dstngushng the effects of dvorce tself from the poverty and consequent dsadvantages whch so often result; see M. Maclean and R.E.J. Wadsworth, The Interests of Chldren after Parental Dvorce: A Long-Term Perspectve, (1 988) 2 Int. J. of Law and the Famly 155. ss M.P.M. Rchards and M. Dyson, Separaton, Dvorce and the Development of Chldren: a revew, (D.H.S.S., 1982); S. Madment, Chld Custody and Dvorce, (1984). t 8
about chldren seem to be more common n dvorces based on ntolerable behavour than n others.56 The alternatve s a long perod of separaton durng whch chldren can suffer from the uncertanty before thngs can be fnally sorted out or from the artfcalty of ther parents lvng n separate households under the same Ths s scarcely an effectve way of encouragng the parents to work out dfferent ways of contnung to dscharge ther shared parental responsbltes. It s often sad that couples undergong martal breakdown are too wrapped up n ther own problems to understand ther chldren s needs.58 There are also couples who, whle recognsng that ther own relatonshp s at an end, are anxous to do ther best for ther chldren.59 The present system does lttle to help them to do so. Concluson 2.21 These defects alone would amount to a formdable case for reform. The response to Facng the Future very largely endorsed ts concluson that Above all, the present law fals to recognse that dvorce s not a fnal product but part of a massve transton for the partes and ther chldren.60 It s all too easy to thnk of dvorcng couples n smple stereotypes. In fact they come n many dfferent shapes and szes. But for most, f not all, the breakdown of ther relatonshp s a panful process, and for some t can be devastatng. It affects each party n dfferent ways: one may be far ahead of the other n wthdrawng from the relatonshp before the other even realses that there s a problem.61 The anger, gult, btterness and regret so often felt have lttle to do wth the law, whch can seem an rrelevant game to be played by the lawyers. But the law does nothng to gve the partes an opportunty to come to terms wth what s happenng n ther lves, to reflect n as calm and sensble a way as possble upon the future, and to re-negotate ther relatonshp. Both emotonally and fnancally t s better for them and ther chldren f they can do ths by agreement rather than by fghtng n the courts. There are always gong to be some fghts and the courts are there to resolve them. But the courts should be kept to ther proper sphere of adjudcatng upon practcal dsputes, ensurng that approprate steps are properly taken, and enforcng the orders made. They should not be pretendng to adjudcate upon matters they cannot decde or n dsputes whch need never arse. 56 J. Eekelaar and E. Clve, Custody ajer Dvorce, (1977), para. 13.3. 57 See note 6 above. 58 A. Mtchell, op. cf., pp. 101 and 1 13; J.S. Wallersten and J.B. Kelly, op. tt., pp. 41-42. 59 G. Davs and M.-Roberts, Access to Agreement, (1988), p. 27. 6o Law Corn. No.. 1.70, para. 3.50. D. Vaughan, Uncouplng-Turnng Ponts n Intmate Relatonshps, (1 987). 9
PART I11 MODELS FOR REFORM The ams of the law 3.1 In revewng possble models for reform we have n mnd the followng broad objectves for the law whch we beleve to be generally agreed: () It should try to support those marrages whch are capable of beng saved. () It should enable those whch cannot be saved to be dssolved wth the mnmum of avodable dstress, btterness and hostlty. () It should encourage, so far as possble, the amcable resoluton of practcal ssues relatng to the couple s home, fnances and chldren and the proper dscharge of ther responsbltes to one another and to ther chldren. (v)-it should seek to mnmse the harm that the chldren of the famly may suffer, both at the tme and n the future, and to promote so far as possble the contnued sharng of parental responsblty for them. 3.2 These ams are smlar to those expressed n The Feld of Choce2 but wth mportant dfferences n emphass. There s now a much greater understandng of the needs of chldren whose parents dvorce. It s mportant for ther sake that the law should seek to mnmse btterness and hostlty and to promote amcable settlements. There s also a sound publc nterest n dong so. It does no good to anyone f resources are wasted away n costly legal battles. The famly s clams on the publc purse may also ncrease, f parents are not oblged at the outset of ther martal dffcultes to consder how ther fnancal responsbltes, prncpally towards ther chldren but also to one another, should be met. 3.3 There s also a sound publc nterest n helpng to preserve those marrages whch can be saved. It s generally accepted that the law nether can nor should force people to lve together or keep alve the empty shell of a marrage whch s undoubtedly dead.3 There are also some marrages whch cannot or should not be saved. It s mportant, both for ther sake and for the sake of ther chldren, that people whose marrages have faled are not burdened wth an even greater sense of gult or personal falure. But t s legtmate to try to avod the damage done by decsons taken n haste and wthout full consderaton of the consequences. As our predecessors put t, a dvorce law... can and should ensure that dvorce s not so easy that the partes are under no nducement to make a success of ther marrage and, n partcular, to overcome temporary dff~ultes.~ 3.4 The am of supportng those marrages whch can be saved can be dstngushed from the am of upholdng the nsttuton of marrage t~elf.~ For some of our respondents, as for our predecessors, t was mportant that dvorce law should send the rght messages, to the marred and the marryng, about the serousness and permanence of the commtment nvolved.6 We agree. Despte a rapd recent growth n cohabtaton outsde marrage, marrage remans an extremely popular nsttuton. Couples see t as offerng, not only an mportant sgnfer of ther commtment to one another, but also a home of ther own, fnancal and emotonal securty, and an accepted context for havng chldren. Marrage nvolves mutual legal oblgatons of support and sharng whch other relatonshps do not. The law should certanly do ts utmost to recognse and enforce these. It must also be realstc and practcal. If people who are unhapply marred are dened a means of reorderng ther lves n a sensble fashon, many of them Para. 1.6 above. (1 966), Law Corn. No. 6, paras. 15 and 120( 1). Law Corn. No. 6, para. 15. Ibd., para. 16. Cf. Law Corn. No. 6, para. 15 and para. 120( 1). Ths vew s eloquently put by one of our respondents, Helen Oppenherner, a member of the group apponted by the Archbshop of Canterbury whch produced the Report, Puttng Asunder, A Dvorce Law for Confernporary Socety, (1966), n her recent book Marrage, (1990), ch. 8, and by the Natonal Campagn for the Famly and Natonal Famly Trust n A Secure Bass for Dvorce Law Reform, (1988). P. Mansfeld and J. Collard, The Begnnng of the Rest of Your Lfe? A Portrat of New1.v- Wed Marrage, (1988), p. 229; see also J. Burgoyne and D. Clark, Makng a Go of It, A Study of Step-famles n Sheffeld, (1984), esp. ch. 1. 10
wll smply walk away. Others may be deterred from marryng n the frst place, but wll lve together nstead.8 Support for the nsttuton of marrage cannot be acheved by turnng t nto an nsttuton whch no-one any longer wshes to enter. But the recognton that a marrage has broken down does not mean that the oblgatons resultng from t should be gnored. The optons n Facng the Future 3.5 In Facng the Future9 and ts summary, we canvassed sx possble bases for the ground for dvorce: return to a wholly fault-based system; a full nqury nto whether or not the martal relatonshp had ndeed broken down; mutual consent; mmedate unlateral demand; separaton for a specfed perod; and dvorce after a perod of reflecton and consderaton of the arrangements, referred to as a process over tme. We concluded that the frst four of these were, for varous reasons, mpractcable or unacceptable. Consultaton has confrmed that concluson. It may, however, be helpful to expand a lttle upon the reasons before turnng to those models whch now seem to consttute the acceptable feld of choce. The rejected optons () Return to fault 3.6 None of our respondents argued for a return to a system based wholly on the matrmonal offence. However, ths was mplct n some of the arguments put forward n support of ts retenton as part of a mxed system. It was sad both to provde a moral framework for marrage and to act as a restrant on the partes behavour.1 These are mportant objectves. Nevertheless, t s clear that they cannot be acheved through a return to a wholly fault-based dvorce law. Frst, dvorce law s only capable of assessng fault n the crudest possble way. The law s, of course, used to decdng whether or not a crme has been commtted. It s much less well-suted to engagng n the complex and senstve factual and moral judgments whch would be necessary accurately to reflect the relatve blameworthness of the partes to a marrage. The hstory of fault-based dvorce was one of ever-ncreasng complexty as the law vanly tred to solve ths problem. In the end t became clear that t could not do so wthout relyng to an unacceptable and even more unprncpled extent upon the value judgments of the partcular judge tryng the case.12 The complextes of famly lfe are no longer capable of beng reduced to smple certantes. 3.7 Secondly, and perhaps more mportantly, restrctng dvorce to matrmonal fault s an llogcal and neffectve means of tryng to acheve acceptable standards of martal behavour, because the sancton cannot work. Logcally, of course, where both partes are equally gulty, t denes them both a dvorce, but the law recognsed some tme ago that that was absurd. If only one s gulty, but dvorce s what he wants, then t s scarcely actng as a restrant on behavour or provdng a sound moral framework to gve hm just that. Allowng the nnocent party to punsh the gulty by refusng the dvorce s unlkely n today s socety to change that behavour. If dvorce s not what the gulty party wants, then the mportant sancton s not so much the publc markng of hs or her gult but the breakdown of the marrage tself. The fact that adultery or volence or other bad behavour may lead to an unwanted break up of the marrage s the real deterrent-and long may t reman so. 3.8 Respondents to our publc opnon survey were presented wth a number of possble bases for dvorce and asked whether or not these were a~ceptab1e.l~ The object was to ntroduce them to a range of possbltes and to see what mght be ruled out. * The marrage rate among those elgble to marry has fallen n recent years, n part t s thought because of an ncrease n cohabtaton outsde marrage; and see J. Haskey and K. Kernan, Cohabtaton n Great Brtan, characterstcs and estmated numbers of cohabtng partners, (1989) 58 Populaton Trends 23. Law Corn. No. 170, Part V. lo E.g. G. Brown, Fndng Fault n Dvorce, p. 14. See e.g. R. Phllps, Puttng Asunder, A Hstory of Dvorce n Western Socety, (1988); also standard textbooks on Dvorce or Famly Law before 1969. Ibd., p. 563. Subjectvty s a common phenomenon n assessng gult; as Davs and Murch, op. ct. at p. 49, wryly observe, where the woman had embarked on another relatonshp, there was a tendency for her to accept all responsblty for the subsequent breakdown of her marrage. Ths was a percepton whch husbands, n smlar crcumstances, found easer to resst ; outsders assessng the same marrage may also fnd t dffcult to leave ther own preconceptons about marrage and famly lfe behnd. l3 Appendx D, Tables 17, 18. : 11