Time for deliberation in english
Time for deliberation in English and "˜European' divorce law
Divorce law is the area of legal system whose shape depends not only on legally and sociologically based research, but also on complex policy issues. There are many opinions about its functions in the society, values that should be protected while terminating a marriage and the proper grounds for divorce. The current divorce law of England and Wales is criticized for providing a fault-based principles and not requiring from spouses a sufficient deliberation of their decision to divorce. Nevertheless, the law remains unchanged and due to the government's decision not to implement Part II of the Family Law Act 1996 it seems that forty year old rules are here to stay.
However, as has been observed of the convergence of family law in Europe , the discussion about the shape of divorce law is still vibrant, especially after the announcement of Principles of European Family Law Regarding Divorce and Maintenance Between Former Spouses (the Principles). The Principles were designed by an independent group of European scholars not only "˜to be most suitable for the harmonization of family law within Europe', but also to be an inspiration for national legislators. Those model rules should be evaluated in the context of a possible divorce law reform in England and Wales with the particular regard given to the crucial institution of time for deliberation.
The current divorce law of England and Wales
The current English substantial divorce law is set forth in the Matrimonial Causes Act 1973. The Act stipulates that the sole ground for obtaining a divorce is that the marriage has broken down irretrievably. However, it also provides that a petitioner must establish the irretrievable breakdown of marriage by proving at least one of the five facts set out in section 1(2) of the Act. Three of those facts are based on a fault of the respondent and are focused respectively on adultery, behaviour and desertion. The two remaining facts require an objective test of separation, which must last for at least two years if the respondent consents to a divorce decree being granted. However, if he or she does not, the prescribed time is prolonged to at least five years. The Matrimonial Causes Act 1973 gives the spouse the choice to base the petition on the matrimonial fault and to try to get a divorce without any time restrictions, or alternatively, to live in a separation for the abovementioned periods of time without stipulating any fault at all. There are no effective provisions provided for promoting reconciliation and mediation or purporting to adequately protect the interests of children.
Nevertheless, the divorce law operates differently in practice. The striking characteristic of English law is that owing to the shape of procedural rules over 99% of divorce petitions are undefended. However unusual it may seem, it becomes clear after taking into consideration costs of the contested procedure, its length and difficulties in succeeding. In consequence, almost all cases are examined under the provisions of the so-called "˜special procedure' which governs undefended petitions. These procedural rules to the great extent distort the substantive divorce law since the judge sitting in private examines a divorce petition without any hearing of the parties and with no real scrutiny of the alleged facts. Almost in all cases the decree is granted as requested by the petitioner.
In practice, regardless of the true reasons for divorce, the petitioner decides to "˜prove' respondent's "˜adultery' or "˜behaviour' on which grounds, according to the most recent statistics, about 70% of petitions are based. In almost all cases mediation services are not considered by the parties. In "˜The Ground for Divorce' report the Law Commission rightly pointed out that the procedure for obtaining divorce encourages the petitioner to make allegations against the respondent, which in turn increases hostility between them and often blights the chances for saving the marriage.
The current divorce law does not ensure that couples comprehend the consequences of their decisions. English law gives spouses an opportunity to get a quick divorce, even within three or four months, by alleging the fault-based facts. Nevertheless, the Matrimonial Causes Act 1973 provides a one-year duration of marriage requirement for commencing divorce proceedings. Moreover, in most cases the decree of divorce can be made absolute, ie final, only by the application of the petitioner after the expiration of six weeks from its grant. In a sense, those provisions set forth a certain period of time for deliberation, however, not an effective one. The spouses are not required to rethink adequately their decisions, unless the they have already lived separately for a sufficient time. Since mediation is not sufficiently supported, it is very difficult for the parties to come down to an agreement regarding the consequences of divorce, especially those concerning the upbringing of children.
Time for deliberation under the provisions of the Family Law Act 1996
The Family Law Act 1996 was enacted as a response to the criticism of the current divorce law of England and Wales. The new law was supposed to be a modern piece of legislation and was described as a "˜revolutionary idea'. However, the final shape of the act was met with serious doubts amongst both scholars and practitioners. Due to the ambivalent results of pilot schemes the government decided not to implement Part II of the Act providing the reformed substantive and procedural divorce rules.
The general idea behind that Act is to provide the non-fault based divorce law in the form of a procedure requiring a series of steps being taken over a considerable amount of time. The legislation introduced the sole ground for divorce - the irretrievable breakdown of the marriage, which is to be established by the expiry of the prescribed amount of time after filing the divorce papers. The Act sets forth that the party seeking divorce must attend the information meeting to be instructed about the divorce law and the consequences of termination of marriage. Only when three months' time from attending the meeting has expired, the spouse can make the statement of martial breakdown, which starts the proper divorce proceedings. After the fourteen days from receiving that statement by the court, the period of reflection and consideration begins and lasts at least nine months, or in the case of spouses having a child of the family under the age of sixteen "" fifteen moths. When that period ends, the parties will receive a divorce order on the application of at least one of them.
The mere length of period of reflection and consideration gives spouses time to rethink their decision, to make the use of a professional reconciliation and thereby prevent hasty decisions being sanctioned as well as to help to save the marriage. On the other hand, when the marriage has irretrievably broken down and is being brought to an end, the spouses are required to come to an agreement concerning the consequences of divorce, especially those connected with children. For this purpose, they may be given directions requiring attending the meeting aimed to explain the possibilities of mediation in relation to disputes between them. Furthermore, when the parties are unable to reach an agreement, the court is required to make relevant orders, as in the moment of granting the divorce all its consequences should be already solved.
The idea of a period of reflection and consideration is an interesting solution requiring form spouses a serious deliberation of their decision. It promotes reconciliation and mediation. However, since the minimum time of the proceedings under that Act would be over twelve months, or in the case of spouses having a child of the family under the age of sixteen, over eighteen months, the new law was criticized as being too strict. Taking into consideration reformed divorce laws of other European countries, a proposed amount of time is substantial. What is more, the Act provides no distinction between the divorce by the mutual consent and without it. Mostly for the above mentioned reasons Part II of the Act was not implemented and the old law remains in force.
The Principle of "˜Reflection period'
Reasonable solutions on divorce grounds can be found in the Principles of European Family Law Regarding Divorce and Maintenance Between Former Spouses. Those model principles distinguish two separate regimes of divorce rules. The first regime concerns "˜Divorce by mutual consent' and the second one "˜Divorce without the consent of one of the spouses'. In case of the latter, European scholars decided that no specific institution of time for deliberation is necessary, as divorce without the consent of one of the spouses should be permitted if they have been factually separated for one year. It is a simple and ample solution. One year of factual separation inherently requires a sufficient deliberation of the consequences of terminating the marriage. Nevertheless, Principle 1:9 sets forth that in cases of exceptional hardship meeting that requirement would not be necessary.
The more interesting and very unique principles were designed to apply in case of divorce with mutual consent of the spouses. A mutual consent is defined as an agreement between the spouses that their marriage should be dissolved. It may be expressed either by a joint application of the spouses or by an application by one spouse with the acceptance of the other. In the case of mutual consent no period of factual separation is necessary, however, instead the "˜Reflection period' applies when the parties who agree to get a divorce have not been factually separated for at least six months at the commencement of the proceedings. It was decided that six month of factual separation provides a sufficient time to rethink a decision about the divorce.
Under Principle 1:6 reflection period may be defined as an amount of time that in divorce by mutual consent the spouses have to wait after filing the relevant papers to legally terminate their relationship. The general idea behind the reflection period is to give the spouses time for deliberation, to rethink their decision, and in this way prevent hasty agreements being sanctioned as well as make the couples think about the consequences of the divorce. Although the Commission on European Family Law highlights that the main aim of the reflection period is to "˜facilitate an agreement between the spouses with regard to the consequences of the divorce', this point of view is not consistent with the fact that, despite reaching an agreement during that period, the parties to the divorce still have to wait to the expiry of the prescribed time.
There are two main factors that influence the length of the reflection period. The first is where the spouses have children who at the commencement of the proceedings are under the age of sixteen. The second is reaching agreement in writing on the particular consequences of the termination of marriage, which according to Principle 1:6 are: parental responsibility (including residence and contact arrangements for children), child maintenance, property division or relocation, and finally, spousal maintenance. The former factor indicates that if the spouses have children, their decision should be better thought out, as their autonomy is not absolute and they must take into consideration the interests of minors. On the other hand, the latter assumes that if the parties can agree on all the consequences of the divorce, that means that they realize its implications, treat it seriously, but most of all, that there is no reason not to respect their autonomy.
As a result, under Principle 1:5, depending on the presence of the foregoing factors, there can be a three or six month long reflection period or no reflection period at all. The six-month period applies when the parties at the commencement of the divorce proceedings have children under the age of sixteen years as well as if they did not reach the abovementioned agreement on the consequences of the divorce. Furthermore, the three months' time for consideration is necessary when the spouses have the eligible children and reached the abovementioned agreement or, in the second variation, when the parties do not have eligible children, but they did not reach an agreement on the relevant consequences of the divorce. Finally, the reflection period is not required when spouses both do not have eligible children and reached the relevant agreement.
The reflection period as the time for deliberation is an interesting idea aimed at making the parties consider not only the implications of the divorce, but also the welfare of their children. However, there are some disadvantages of this solution. The most serious one is that Principle 1:5 does not mention the possibility of using the means of reconciliation and mediation. These methods have recently become popular in divorce law and at least its recognition in the non-obligatory shape should have been indicated as a part of the reflection period.
The principle of reflection period as the auxiliary ground for divorce
Under the Principles of European Family Law the reflection period must be also interpreted as an additional ground for divorce owing to which a reasonable construction of the mutual consent divorce rules could have been provided. First of all, the Principles could have adopted two much more straightforward solutions. One is that the agreement of the spouses, as the manifestation of their autonomy should be the only ground for divorce without any other conditions. However, this solution has two main disadvantages. Firstly, it does not purport at all to protect the interests of children. Secondly, it provides almost no judicial control of divorce and no attempts to save the marriage. Taking into account the aim of the harmonisation of divorce law in Europe it would be met with a strong opposition of many countries.
One the other hand, the second option was to supplement the mutual consent of the parties only by a simple, objective requirement of the factual separation eg lasting for at least six months. It can be argued that the separation may have to some extent similar functions as the reflection period and in addition it provides an objective test of the breakdown of the relationship. However, this solution for many would be too rigid and unfair. Firstly, the more "˜liberal' countries would criticize it as both an interference in the autonomy of spouses and an unnecessary obstacle. Moreover, that kind of provision interpreted in a literal way is discriminatory towards the poorer part of the society that cannot afford to live separately or in two households.
Taking into account disadvantages of the abovementioned solutions, the Principles adopted the mixed ground for the mutual consent divorce. The main and necessary prerequisite is the agreement between the spouses on the termination of their marriage by divorce. However, this condition is necessary but not sufficient. It must be supplemented by one of the two auxiliary grounds ie factual separation for at least six months or the reflection period (with one exception when the reflection period is not required). In consequence, the idea of the reflection period has much more significance than it might first appear. Constituting an auxiliary ground for divorce it is an aid for the proper balance between the autonomy of the parties and the judicial control of the termination of a legal relationship. Furthermore, it can help to protect the interests of children as well as not to undermine the institution of marriage.
The European Principles of Divorce Law provide a bulk of interesting and well thought out solutions. In the case of divorce without consent of one of the spouses a factual separation of one year operates as both time for deliberation and the sole ground for divorce. This is solution is very simple and seems fair. On the other hand, in the case of divorce by mutual consent, the reflection period entails modern and interesting concept respecting the autonomy of the spouses and the principle of children welfare. Amongst two main functions of that principle ie: giving the spouses time for deliberation and introducing a reasonable model of the mutual consent divorce, the latter one, although crucial, is underestimated and should be studied in more depth. As a result, the question arises whether this construction could not be transferred to the English legal system.
In England and Wales, similarly like in other European jurisdictions, there are more "˜conservative' factions regarding an "˜easy' divorce as undermining the institution of marriage, and more "˜liberal' ones arguing that spouses' autonomy is a sufficient ground for the legal termination of a relationship. If after thorough studies renowned scholars decided that the reflection period was an interesting way to reach the compromise on the shape of divorce law in Europe, there is also a chance that this solution might be used to reform the current English law in a more reasonable way than its counterpart under the Family Law Act 1996.