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Separation Divorce Settlements | Free Family Law Essay

Deciding to separate is hard enough. Separation and divorce are difficult times for parents and especially if there are children involved. It is important to make decisions which meet the needs of both parties. Dealing with family matters within the courts can take an extremely long time. Divorce alone takes an immense toll out of any individual.

Time, emotions and financial resources are often sacrificed. There is another way, a less adversarial, more solution-oriented alternative.

In this essay I will briefly analyse the history of divorce and the grounds upon which a divorce can be granted. I will find alternatives to court settlements, informally known as out of court settlements. Assessing these alternative options I will highlight on the procedures to follow. By doing so I will critically assess the impact of these Alternative dispute Resolutions in family matters, focusing on divorce and comparing them statistically with in-court settlements.

Furthermore, I will also judge whether or not Lord Woolfs 1986 report ‘access to justice' has made a difference in increasing out of court settlements.

To conclude, I will give an in depth verdict on both of the optional routes available and raise issues for and against each type of settlement, whilst giving an insight to which route I believe is to be more pragmatic.

Prior to the mid-nineteenth century, the law had largely adopted the Christian view of marriage as an indissoluble lifelong union. The ecclesiastical(Christian church) courts could grant a divorce a ‘mensa et thoro', but this was more like a judicial separation than a divorce, meaning that the parties were free to live apart but could not marry again. Alternatively, the only other way of obtaining a divorce was by a private Act of Parliament, and this lengthy and expensive procedure was available to very few people.

The Matrimonial Causes Act 1857, enabled the Court of Divorce and Matrimonial Causes to grant a divorce where the petitioner could prove not only that the respondent had committed adultery, but also that there had been no collusion or condonation.

It was not until the mid-1960s, however, that parallel reports by the Law Commission and the Church of England led to fundamental changes. The aims of the reforms, as set out by the Law Commission in 1966, were to buttress, rather than undermine, the stability of marriage; and when, regrettably, a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.

Matrimonial Causes Act 1973

The supposed aim of the 1969 legislation (now consolidated in the Matrimonial Causes Act 1973) was to abolish the former "matrimonial offences" and substitute the breakdown of the marriage as the sole ground for divorce. This has been achieved on paper, but the reality is rather different. The Matrimonial Causes Act 1973highlighted the grounds for divorce. In respect to the act “a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably”. Furthermore, the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following five facts; Firstly, the respondent had committed adultery and the petitioner found it intolerable to live with the respondent. Secondly, the respondent had behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent anymore. Thirdly, the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition. Fourthly, the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree. Fifthly, the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition. “If the court is satisfied on the evidence of any such fact as mentioned above, then unless it is satisfied, that the marriage has not broken down irretrievably, it shall grant a decree of divorce”.

In 1996 the House of Commons (the English Lower House) passed The Family Law Act but to date only part of it has been implemented. The 'fault principle' has had a defining influence on the present law. Of the "five facts" mentioned above, the first two are still the most commonly alleged in spite of the law's attempt to move away from the idea of a matrimonial offence. About 40% of petitions are based on the respondent's behaviour and about 30% on adultery. 20% are based on two years' separation and the respondent's consent, while desertion and five years' separation between them account for less than 10% of all petitions. Currently, 70% of all divorces are granted on the basis of a matrimonial 'offence'. This is because it is the quickest way of obtaining a divorce. The new law provides for a minimum period of 12 months separation prior to divorce. This period can be extended to 15 months if there are children under 16 years of age. First, the married couple has to participate in an Information Meeting before either individually or jointly making a statement that the marriage has broken down. This is then followed by another period of consideration, lasting a minimum of 9 months.

Until recently, if you had a legal problem, as mentioned above, you would normally have to go to court or a tribunal in what is often called litigation. Although this is still a common way of sorting out such problems, there has been introductions to other methods.

Its official title is dispute resolution: civil justice and its alternatives.' Alternative Dispute Resolution is usually given a strictly technical meaning.

Alternative dispute resolution, usually referred to as ADR, is the collective term for the ways that parties can settle civil disputes, with the help of an independent third party and without the need for a formal court hearing. The main types of alternative dispute resolution used in consumer disputes are ombudsmen, conciliation, mediation and arbitration and are usually provided by trade associations. Other types of ADR used in commercial disputes include adjudication, early neutral evaluation and expert determination.

Over the last decade interest in alternative dispute resolution has steadily been growing amongst the Judiciary and legal professions.

Civil Procedure Rules

A significant push came from Lord Woolf's 1986 report 'Access to Justice', that identified the need for fair, speedy and proportionate resolution of disputes. The report recommended that parties needed to seek legal action only as a last resort. He suggested that they should first try to settle matters outside the judicial system. Those principles lay at the heart of the Civil Procedure Rules, which came into force in April 1999.

The civil procedure rules included references to ADR in rules of court and introduced pre-action protocols, with their emphasis on settlement, even before court proceedings are issued.

Parties who decide to use alternative dispute resolution to settle their dispute can select a method and a provider of their own choosing, depending on the source of the dispute. While ADR is not usually compulsory, clauses providing for ADR in contracts are binding as long as they are specific. The Civil Procedure Rules provide for the judiciary to encourage the use of ADR in appropriate cases. However the extra-judicial procedures are not themselves governed by statute except for a number of Ombudsman Schemes and arbitration schemes which have been established by Act of Parliament.

ADR schemes are not meant to replace the courts in all cases. But they can have advantages over going to court. These advantages include, being more flexible, solving your problem faster, being les stressful and costing you less money. Using ADR promotes a better longer lasting solution to your problem. It may also mean that you may have a better communication with them in the future.

Out of court settlements involving family matters usually use mediation as an alternative dispute resolution. Mediation involves an independent third party helping disputing parties to resolve their dispute. The disputants, decide the terms of the agreement, not the mediator. However the mediator has an extremely important role, in 'reality testing' any agreement. This means that they have to check carefully whether or not the parties are actually able to do what they have agreed to do.

Mediation is now widely recognised in the UK and Europe as the most popular form of alternative dispute resolution as it offers solutions beyond those that a court could ordinarily impose. Family mediation helps those involved in family breakdown to communicate better with one another and reach their own decisions about children, property and finance.

Mediation offers an affordable, cost effective alternative to potentially damaging court proceedings. It involves both people meeting together in a neutral place with an independent mediator who manages the mediation meetings and prepares the documentation which can be used for the basis of a legally binding order.

The author critically notes that the aims and objectives of the law are inconsistent. On the one hand it seems to promote the preservation of marriage, whilst on the other hand, it wishes to provide for an inexpensive and peaceful dissolution of the marriage. In England the fear has been expressed that forced mediation will be detrimental to wives, although empirical evidence has not yet confirmed this fear.At the moment there are pilot schemes taking place to monitor the provisions of the new law prior to it being implemented

The Family Law Act 1996 - Mending or ending a marriage?

Das Familienrechtsgesetz 1996 - Erhaltung oder Beendigung einer Ehe?

Journal	Deutsches und Europäisches Familienrecht
Publisher	Springer Berlin / Heidelberg
ISSN	1435-9499 (Print) 1435-9502 (Online)
Issue	Volume 1, Number 1 / February, 1999
DOI	10.1007/s100410050014
Pages	47-51
Subject Collection	Humanities, Social Sciences and Law
SpringerLink Date	Thursday, February 19, 2004

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