“Divorce has become too easy and risks destabilising the institution of
marriage.”
Discuss.
Ans: The institution of marriage is one of the foundational pillars of a person’s life, hence its
preservations are of paramount importance. The questions invoke analytical debate
surrounding the phenomenon of divorce. The argument will focus on the states interest,
and the role of administration in granting divorce. The concept of following the procedure
will be discussed along with the comment on how easy or difficult it is to comply with them.
The debate will house the discussion on how divorce affects marriage by measuring the ease
of accessibility of it. The new law on Divorce would be mentioned to facilitate the argument.
In addition to that it will also touch upon the debate of marriage being private contract or
status. To support the argument relevant case laws will be used and the main legislation for
the purposes of debate will be Matrimonial Causes Act 1973.
As per Sir George Baker, former present of the family division, marriage provides the
building blocks of the society and is essential to the wellbeing of our society as we
understand it. The idea pointing at the importance of marriage and indirectly hinting at the
urgency to deal with any notions that might disturb this institution. To start the argument, it
is prudent to summarize the procedure of getting a divorce. Under MCA 1973 divorce is
granted by a petition where one party provides an application on divorce and the other
party can choose to defend the application, this can only be done after one year of
marriage. After the acknowledgment of services, a decree nisi would be granted to decide if
the petitioner is entitled to divorce followed by a decree absolute after 6 weeks to finalise
the divorce proceedings. In s.1(1) the sole ground of divorce is irretrievable breakdown
which can be shown by satisfying one of the five points laid down in s.1(2). These included
respondents’ adultery (Cleary v Cleary) [1974], intolerable behaviour, desertion, two years
separation with consent and five years separation without consent.
The legislation made the process of divorce hard so that parties would not consider it on
minor or trivial issues, given the weight of time and effort attached to it. The year long wait
before seeking a divorce itself states that parties should be given time to think about their
position. The five points for getting a divorce are not light on the scale as well, proving
adultery (GoDennis v Dennis) [1995] along with the fact that the partner found it intolerable
to live the respondent (Birch v Birch) [1992] is not an easy condition. Moreover, proving
that the respondent behaviour was unreasonable, and the petitioner could not be expected
to live with her is a multifaced problem and it is not very common to come across the cases
which has both elements. The two or five years of separation is basically giving time to the
couple to rethink about divorce. Hence it is necessary to follow the procedure as it identifies
if the couple is genuinely needing a divorce or is it just a phase driven by temporary
emotions. Therefore, restricting easy access to divorce and promoting marriage. Moreover,
an alternative picture to the same argument is that because it only has five points some of
the issues are excluded from being considered as a ground. So, because it won’t cover broad
issues the parties are limited to just resorting to these ones already there hence limited
number of situations would fit the criteria.
, The case of Owens v Owens [2018] can be referred to, although controversial case it does
show that the courts denied the divorce because the points for breakdown were not
satisfied. It was agreed by the Lordships that the marriage had been broken down but due
to insufficent evidence regarding the procedure divorce could not be granted. It carries two
meanings, first being that the courts are strict and uses a literal approach to the legislation
for granting divorce and the second being the uneven nature of the law itself that even
though it was evident that the marriage has failed the law forcibly held it intact.
Nevertheless, this exemplifies that even where it seems right to grant divorce the rigidness
of divorce may lead to destabilising marriage. This is because if it is truly believed that the
spouses cannot live together making them live forcibly can lead to hostility and bitterness in
the relationship.
However, there is another angle to view this as. The fact that getting a divorce is an
administrative procedure makes it unnaturally simple. When the five points for breakdown
of marriage are proved on paper or theoretically, divorce would be granted. As per Haskey
[2018] the divorce law requires the parties to cite a fact as the cause of marital breakdown
which might not be the real cause of the marital breakdown. This is further corroborated by
Liz Trinders research [2017] that it is common for petitions to not write the true cause of
the breakdown of marriage. The case of Baron v Baron iterates the lack of scrutiny as a
decree nisi was granted to three cases where the one-year mark of marriage was not
reached. Hence it can be deduced that access to divorce is easier on the face of it thus
destabilising marriage.
Nonetheless the Divorce Dissolution and Separation Act 2020 brought many changes to the
existing system by devoting a whole legislation to it. This attempt to make the process more
streamlined and access to it easier. Furthermore, there are some proposed reforms going in
favour of no-fault divorce which would directly undermine the notion of marriage as lifelong
obligation as divorce could be granted at will. Hence not popular among judges such as Lady
Hale and Sir Paul Colridge (family law judge).
Lastly it is crucial to touch upon another debate which contends that marriage is a private
contract and thus the state should not intervene in its affairs. However, it is seen as a status
which has legal consequences flowing from it and there is ample judicial commentary to
justify it such as Baroness Hale in the case of Radmacher v Grantino [2010] stated that the
marriage also has legal consequences for other people and for the state. The importance of
it being that the legal stamp of marriage makes it susceptible to the administrative process
and the judicial financial remedies on execution and separation. The purpose behind is to
preserve marriage by not giving parties easy access to divorce.
In conclusion the above argument is reflective of the deduction that divorce is indeed strict
and restrictive. The case laws presented establish that the courts are not willing to abandon
divorce on simple facts. The points for divorce are cleverly drafted to give parties either
extreme circumstances or ample time to think if they truly seek divorce. The fact that there
are proposed reforms in favour of a more lenient version of divorce states that the old law
was strict. However, it is a different debate whether the new law has stabilised marriage
given the easy access to divorce.
marriage.”
Discuss.
Ans: The institution of marriage is one of the foundational pillars of a person’s life, hence its
preservations are of paramount importance. The questions invoke analytical debate
surrounding the phenomenon of divorce. The argument will focus on the states interest,
and the role of administration in granting divorce. The concept of following the procedure
will be discussed along with the comment on how easy or difficult it is to comply with them.
The debate will house the discussion on how divorce affects marriage by measuring the ease
of accessibility of it. The new law on Divorce would be mentioned to facilitate the argument.
In addition to that it will also touch upon the debate of marriage being private contract or
status. To support the argument relevant case laws will be used and the main legislation for
the purposes of debate will be Matrimonial Causes Act 1973.
As per Sir George Baker, former present of the family division, marriage provides the
building blocks of the society and is essential to the wellbeing of our society as we
understand it. The idea pointing at the importance of marriage and indirectly hinting at the
urgency to deal with any notions that might disturb this institution. To start the argument, it
is prudent to summarize the procedure of getting a divorce. Under MCA 1973 divorce is
granted by a petition where one party provides an application on divorce and the other
party can choose to defend the application, this can only be done after one year of
marriage. After the acknowledgment of services, a decree nisi would be granted to decide if
the petitioner is entitled to divorce followed by a decree absolute after 6 weeks to finalise
the divorce proceedings. In s.1(1) the sole ground of divorce is irretrievable breakdown
which can be shown by satisfying one of the five points laid down in s.1(2). These included
respondents’ adultery (Cleary v Cleary) [1974], intolerable behaviour, desertion, two years
separation with consent and five years separation without consent.
The legislation made the process of divorce hard so that parties would not consider it on
minor or trivial issues, given the weight of time and effort attached to it. The year long wait
before seeking a divorce itself states that parties should be given time to think about their
position. The five points for getting a divorce are not light on the scale as well, proving
adultery (GoDennis v Dennis) [1995] along with the fact that the partner found it intolerable
to live the respondent (Birch v Birch) [1992] is not an easy condition. Moreover, proving
that the respondent behaviour was unreasonable, and the petitioner could not be expected
to live with her is a multifaced problem and it is not very common to come across the cases
which has both elements. The two or five years of separation is basically giving time to the
couple to rethink about divorce. Hence it is necessary to follow the procedure as it identifies
if the couple is genuinely needing a divorce or is it just a phase driven by temporary
emotions. Therefore, restricting easy access to divorce and promoting marriage. Moreover,
an alternative picture to the same argument is that because it only has five points some of
the issues are excluded from being considered as a ground. So, because it won’t cover broad
issues the parties are limited to just resorting to these ones already there hence limited
number of situations would fit the criteria.
, The case of Owens v Owens [2018] can be referred to, although controversial case it does
show that the courts denied the divorce because the points for breakdown were not
satisfied. It was agreed by the Lordships that the marriage had been broken down but due
to insufficent evidence regarding the procedure divorce could not be granted. It carries two
meanings, first being that the courts are strict and uses a literal approach to the legislation
for granting divorce and the second being the uneven nature of the law itself that even
though it was evident that the marriage has failed the law forcibly held it intact.
Nevertheless, this exemplifies that even where it seems right to grant divorce the rigidness
of divorce may lead to destabilising marriage. This is because if it is truly believed that the
spouses cannot live together making them live forcibly can lead to hostility and bitterness in
the relationship.
However, there is another angle to view this as. The fact that getting a divorce is an
administrative procedure makes it unnaturally simple. When the five points for breakdown
of marriage are proved on paper or theoretically, divorce would be granted. As per Haskey
[2018] the divorce law requires the parties to cite a fact as the cause of marital breakdown
which might not be the real cause of the marital breakdown. This is further corroborated by
Liz Trinders research [2017] that it is common for petitions to not write the true cause of
the breakdown of marriage. The case of Baron v Baron iterates the lack of scrutiny as a
decree nisi was granted to three cases where the one-year mark of marriage was not
reached. Hence it can be deduced that access to divorce is easier on the face of it thus
destabilising marriage.
Nonetheless the Divorce Dissolution and Separation Act 2020 brought many changes to the
existing system by devoting a whole legislation to it. This attempt to make the process more
streamlined and access to it easier. Furthermore, there are some proposed reforms going in
favour of no-fault divorce which would directly undermine the notion of marriage as lifelong
obligation as divorce could be granted at will. Hence not popular among judges such as Lady
Hale and Sir Paul Colridge (family law judge).
Lastly it is crucial to touch upon another debate which contends that marriage is a private
contract and thus the state should not intervene in its affairs. However, it is seen as a status
which has legal consequences flowing from it and there is ample judicial commentary to
justify it such as Baroness Hale in the case of Radmacher v Grantino [2010] stated that the
marriage also has legal consequences for other people and for the state. The importance of
it being that the legal stamp of marriage makes it susceptible to the administrative process
and the judicial financial remedies on execution and separation. The purpose behind is to
preserve marriage by not giving parties easy access to divorce.
In conclusion the above argument is reflective of the deduction that divorce is indeed strict
and restrictive. The case laws presented establish that the courts are not willing to abandon
divorce on simple facts. The points for divorce are cleverly drafted to give parties either
extreme circumstances or ample time to think if they truly seek divorce. The fact that there
are proposed reforms in favour of a more lenient version of divorce states that the old law
was strict. However, it is a different debate whether the new law has stabilised marriage
given the easy access to divorce.
