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Family behaviour and divorce rates
The emergence of no-fault divorce in Western civilisation has often been attacked for “transform[ing] marriage into an arrangement of convenience rather than an act of commitment"  . It is true that “no aspect of modern family behaviour has received more public attention than the sharp rise in divorce rates that began in the mid 1960s in most of the industrialised countries" and nor is any development in family law “more familiar than the widespread liberalization on the grounds of divorce that took place mainly in the 1970s" (Glendon, 1989, 149). This essay will discuss to what extent a no-fault divorce system is desirable over a fault based divorce model. The examples of England (a mixed system) and Sweden (a purely non-fault system) are used to compare and contrast approaches. This essay shall demonstrate how both systems – including a purely fault based model – have their deficiencies and inadequacies, and it is argued that, under these circumstances, a mixed system is preferable as the least flawed solution for balancing the competing values of individual liberty and societal stability. The work is divided into three parts: the first sets out the important historical background to the debate, showing how and why the concept of no-fault divorce first emerged during the Enlightenment period; the second part offers an overview of the different legal regimes in Sweden and England, whilst the third part offers and evaluative discussion of the pros and cons of either approach.
PART I – The Historical Context
In the beginning: the pre-eminence of fault-based divorce
Roderick Phillips (1988) has persuasively argued that the notion of a fault-based divorce can be traced to the explosion in protestant theological treatises following the Reformation in the sixteenth century. Prior to this momentous event in European history, the Roman Catholic Church’s doctrine of the indissolubility of marriage ensured that no legal divorces were possible throughout Christian Europe. From this tumultuous era henceforth, “for the most part, the history of divorce since the sixteenth century has been one movement away from the Roman Catholic doctrines of marriage" (Phillips, 1988, 1). Protestant reformers saw divorce not as an expression of a failed relationship or as a remedy for marriage breakdown as such, but “as a punishment for matrimonial crime and as a relief for the victim of the crime" (Phillips, 1988, 90). The reason for this is clear: the bible itself anchors the concept of divorce in punitive terms, as a ‘right’ of the ‘innocent’ party to terminate his or her union with the party who has been ‘unfaithful’ to the marriage contract through adultery or abandonment  .
As Antokolskaia (2006) has shown, the establishment of the concept of divorce was “by no means a recognition of the individual's liberty to escape from an unhappy marriage"  . It is a mistake to associate the early Protestant reformers with liberal attitudes towards the institution of marriage; indeed, it has been observed that “it would be difficult to characterise [the Protestant reformers'] overwhelming concern with sexual order and discipline as ‘progressive’" (Harrington, 1995, 90). Divorce (although theoretically available to most living under Protestant regimes) was, in practice, a solution extended to very few by virtue of it being “strictly regulated and extremely difficult to obtain" (Antokolskaia, 2006). The availability of divorce throughout Protestant Europe had much to do with the prevailing strand of Protestantism that most heavily influenced a particular State. For instance, before 1857 marriage under English law was only terminable under a special private Act of Parliament – needless to say, a very lengthy and expensive procedure – mainly because the laws of marriage were still being governed under Roman Catholic canon law, despite the overwhelming superiority of Protestantism in almost all other legal and cultural spheres (Stone (1990, 301) has opined that this anomaly was probably due to the “the tortuous and zig-zag path by which [England] moved from the Catholic into the Protestant camp"). Despite the practical barriers to achieving divorce, the idea of divorce is most persuasively understood as a concept born from within the Church itself, and devised by its closest adherents. This was to radically change once Europe embarked on the Enlightenment.
The emergence of non-fault based grounds for divorce
It was during the Enlightenment that European thinkers first got to grips with secular theories of marriage and divorce. Witte (1997, 202) has pointed out that prior to the Enlightenment, “traditional marriage and family law, under both Catholic and Protestant models, had focused on the contracting and dissolving of marriages". There had been a heavy emphasis on human nature, on God’s will, on the importance of marriage for the individual and for the community at large. This view was challenged so effectively by the Enlightenment philosophers that many of their new ideas “have retained their validity up until the present day" (Antokolskaia, 2006) and buttress many of the arguments presented in this paper. The essence of marriage, Enlightenment thinkers argued, “was not its sacramental symbolism, nor its covenantal associations, not its social service to the community and commonwealth. The essence of marriage was a voluntary bargain struck between two parties who wanted to come together into an intimate association. The terms of their marital bargain were not preset by God or nature, church or state, tradition or community. The terms of the marriage bargain were set by the parties themselves, in accordance with the general rules of contract formation and general norms of a civil society" (Witte, 1997, 10).
This contractual approach to understanding the institution of marriage proved very influential, and continue to do so today. The ‘contractarian gospel’ developed by these thinkers essentially stripped away all that was holy or sacred about the formal union of two adults in favour for seeing their marriage as a bargain in which both participants are equal partners. Having understood marriage itself as no more than a contract for the benefit of both parties, the Enlightenment philosophers saw no reason for limiting the grounds of divorce; as with business agreements, parties should be free to break the union once it is no longer a bargain worth having. These sentiments came to national prominence in 1792 when, during the high point of the French Revolution, a series of reformist laws were enacted which 'gave France one of the most liberal and permissive divorce policies that have ever been applied on a national basis in the western society' (Phillips, 1988, 159). Antokolskaia (2006) explains that besides a broad number of specific grounds, “divorce was permitted by mutual consent and on the ground of incompatibility of temperament". Though these laws were eventually scaled back by the more conservative regimes that followed the revolutionary leadership, the significance of the 1792 reforms was in that it had established non-fault grounds for divorce in European law for the very first time, and in so doing had set the Continent as a whole on a path towards the conceptualization of divorce as a no-fault solution to unworkable relationships.
PART II – A Comparative Analysis of the Law in Sweden and England
Until 1915, Sweden had similar fault-based only divorce legislation as was common throughout the Protestant countries of Europe. In that year, the authorities enacted the Act on the Celebration and Dissolution of Marriage, a law that, for the very first time, recognized ‘deep and permanent breakdown of the marriage’ as a ground for divorce in addition to various ‘fault-based’ grounds (Jänterä-Jareborg, 2002). Applicants under this ground for divorce only had to submit a joint application for a decree of separation, which was as such considered sufficient proof of the breakdown of the marriage. Though this Act incorporated a year-long separation clause in cases of one-sided applications, and was also subject to a judge’s investigation of the facts, it was a revolutionary moment for European divorce law – indeed, so revolutionary, that corresponding rules were only enacted in other Protestant States some 50-60 years later (Jänterä-Jareborg, 2002, 5). It essentially opened the door to divorce by consent: if both parties agreed to divorce, they could simply submit a joint application alleging that their union had broken down, and a judge will likely grant them a dissolution.
Further reforms in 1973 went further by completely sweeping aside all fault-based provisions from the statute books. This law, which is still the law governing divorces in Sweden, is considered amongst the most liberal in the world in light of the fact that it offers what some have termed ‘divorce on demand’: thus, a spouse’s wish to dissolve the marriage alone became sufficient to obtain a divorce and no reasons have to be given in support of the application (Jänterä-Jareborg, 2002, 3). Divorce can be granted immediately upon application (in the case of a joint application), but must in certain cases be preceded by a reconsideration period of six months (such as in the case of a one-sided application) (Jänterä-Jareborg, 2002, 4). Thus, in Sweden, all that needs to happen for a divorce is for the couple to demand one; even if they disagree, a divorce may be granted following a 6 month period. Jänterä-Jareborg explains that in Swedish law, “marriage is seen as a voluntary union between a man and a woman. From this follows that the desire of only one of the spouses to terminate the marriage is sufficient to obtain a divorce" (Jänterä-Jareborg, 2002, 4). Correspondingly, divorce applications may not be refused in Sweden; the most that the courts can do, in the case of a contested application, is to order the six month reconsideration period, after which the divorce must be granted if still sought (Jänterä-Jareborg, 2002, 5).
In conclusion, it is apparent that Swedish law’s acceptance of ‘unilateral divorce’ – or ‘divorce on demand’ – has completely negated the significance of both fault and of ‘irretrievable breakdown’ as grounds for divorce. Couples can divorce whenever they want, for whatever reasons they choose or none. This essay will now contrast this situation with the legal regime constructed under English law.
In contrast to the above, English law does not offer a truly no-fault ground for divorce and, with the Government’s U-turn on this highly controversial issue back in 1996, the likelihood is that “we will not see no-fault divorces in England in the foreseeable future" (Ellmann, 1997, 216). Divorces in England are still, therefore, governed by the Matrimonial Causes Act 1973, which sets out a single ground for divorce in section 1(1): “that the marriage has broken down irretrievably". It is for the court to decide whether this is indeed the case, and it will (or should) only do so providing that the petitioner satisfies it on at least one of the facts specified in Section 1(2). These are  :
that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
that the parties to the marriage 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 being granted,
that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition…"
It is clear from the above that subsection (a) to (c) are entirely based on fault, whilst only the separation requirements of subsections (d) and (e) are neutral. Section 1(3) of the Act maintains that “it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent". Therefore, in theory, parties have to prove the fault in court, if required to do so. However, it is this provision of the Act “that has been most drastically undercut over the years" (Glendon, 1989, 156). Glendon (Ibid) reports on the disinclination on the part of the English courts to really investigate the reality of “fault" in divorce cases, and the introduction of the “special procedure" in the 1970s – whereby petitioners need only to submit completed forms to a registrar in order to get their divorce – has mean that, “without any action by Parliament, judicial inquest divorce has been converted unobtrusively into… a kind of registration divorce". De Cruz observes that this development has meant that the ground of ‘irreversible breakdown’, though still formally mostly fault based, is in practice nothing of the sort. The courts are not interested, despite Parliament’s stated intention, in establishing any fault and see the whole matter as “a purely administrative procedure" (De Cruz, 2010, 43).
The next part of the essay shall outline some of the most important criticism leveled at both the English and Swedish models for divorce.
PART III – Fault and Non-Fault Based Divorce Compared
Arguments in favour of non-fault divorces
In England, perhaps the main criticism of fault-based marriages advanced by reformers during the sexual revolutions of the 1960s and 1970s was that the legal reliance upon a finding of fault to dissolve a marriage encouraged perjury. Since it was so much more expedient to obtain a divorce through the allegation of fault, parties to a failing marriage simply consented to testify that some marriage ‘fault’ had been perpetrated, even when that was not the case. Glendon (1987, 65) has commented that there was clearly something inherently objectionable with the situation that arose by the 1960s, whereby “consent divorce disguised as fault divorce was a routine legal matter in many countries". Indeed, Bainham (2001, 221) has suggested that “three quarters of all divorces" are obtained on ostensibly fault-based grounds “to avoid the inconvenience of having to wait out a separation period" – the median time for obtaining a fault-based divorce is only 6 months.
Bainham observes that “the overwhelming majority of divorces, ostensibly based on fault, are really divorces by consent since they are undefended"  . Thus the fault-based system can be rightly criticized on two fronts; if genuine fault has been perpetrate – or alleged – the system tended to “aggravate and perpetuate bitterness between the spouses", in addition to the humiliation and embarrassment of being forced to air intensely private details in the court’s public forum; if no genuine fault had been perpetrated, as was probably more often the case, “the widespread practice of using perjured testimony in collusive divorces promoted disrespect for the legal system".
In addition to the principle objection outlined above, Ira Ellmann (1997, 228-9) has specifically identified and criticised the arguments advanced by proponents of fault-based divorces. For instance, she makes the point that although critics of no-fault divorces often blame the phenomenon for the proliferation of divorces since the 1960s, no research or empirical data has ever been presented to suggest that the relative easing of divorce is the major factor for people embarking on such a course of action. Another of her arguments is essentially that it was not divorce reform which instigated cultural changes in how society saw the family, but the other way around. Thus, no-fault divorce simply reflects common societal themes such as amoral attitudes towards the family, a change in emphasis from mutual commitment to individual fulfilment and the evaluation of individual independence over mutual interdependence.
The arguments in favour of no-fault divorce in the Swedish context are even more clear-cut. The Swedish minister of justice Herman Kling, in appointing a committee to formulate the 1973 reforms, opined that “[L]egislation should not under any circumstance force a person to continue to live under a marriage from which he wishes to free himself" and that “A new [family] law should… as far as possible be neutral as regards different forms of cohabitation and different moral ideas" (Glendon, 1987, 185). In delivering its proposals, the law reform committee stressed that “not only entry into marriage but also its continued existence, should be based on the free will of the spouses" and that “the wish of one of the spouses to dissolve the marriage should always be respected" (Glendon, 1987, 185). The strength of this argument lies in its simplicity; why should the State place obstacles in the way of people who wish to terminate their union? If one accepts the Enlightenment ideas that marriage is about a love, or a rational partnership, then why should divorce be complicated by fault-based requirements when the love has died and there is no beneficial partnership to speak of?
Arguments in favour of fault-based divorces
One of the main criticisms often leveled against the academics, legal practitioners and lawmakers who initiated the no-fault reforms in divorce law over the course of the twentieth century is that their efforts have led to the irreversible degradation of the institution of marriage as a union between two adults. Critics such as Tsaoussis-Hatzis recognises (2002, 271) that these reformers clearly exhibited good faith and were well intentioned in purpose; their motivations stemmed from a simple desire to modernise the process of divorce by “reducing the adversarial character of divorce proceedings and protecting their integrity", which was threatened by the collusion of couples, a “necessary evil under fault regimes". Despite these good intentions, Tsaoussis-Hatzis argues, the eventual outcome of their reforms was to lift “most (if not all) barriers to exit from marriage", so that no-fault divorce “provided a signal to prospective spouses that marriage was not a lifelong commitment after all" (ibid.). The idea is that the ease with which a no-fault divorce can be obtained casts a shadow over the entire marriage itself, even from the stage when the couple is merely contemplating getting married.
This argument was taken a step further by Elizabeth Scott (2002), who argued that the no-fault philosophy buttressing the reform of divorce laws has had the effect of destabilising marriage and undermining the ability of couples to make their union a successful one. She observed that the non-fault reforms “have inadvertently weakened the social norms that encourage cooperation in marriage, making more difficult couples’ efforts to achieve a successful relationship". Her highly persuasive central contention is that divorce reform has set about destroying the traditional institution of marriage which, for all its faults, was an internally coherent concept, without creating a substitute modern union model to take assume its place. The net effect of this has been the weakening of parental and spousal commitment, which in turn has had a deeply negative impact of society at large.
Scott points to three consequences of such no-fault reforms: firstly, she claims that they have undermined the “signalling function" of marriage – that is, that the new laws have watered-down the institution of marriage to the same level occupied by cohabitation relationships. Thus, whereas marriage used to demarcate a higher level of commitment between the spouses, the ease with which marriage can now be abandoned has largely rendered the formal difference between them practically irrelevant. The second point is that divorce reform has destroyed a “useful precommitment mechanism" (2002, 35); this is essentially that the historically long, expensive and emotionally draining fault-based divorce procedures acted not only heighten the sense of pre-marital commitment between the parties but also as an incentive to remain married. Finally, and probably most pertinently, no-fault divorce undermines marital commitment “because each spouse knows that the other can leave at any time" (2002, 36).
The strength of the arguments supplied by Scott and others lie in that the English and Swedish reformist agendas are not so much rationally flawed as they are defective in practice. Sure, these commentators argue, the State cannot and should not compel people to remain in marriages that have become unworkable, and there is little justice in seeking to place further legal burdens in the form of complicated divorces on these people. However, they contend, that it is the very act of easing divorces through the enactment of no-fault provisions that casts a shadow over the entire relationship to begin with, acting as an ominous backdrop undermining the couples’ efforts to manage difficulties when they are bound to arise. Thus, the extension of no-fault divorces is not the legal answer to a continually changing social environment, but rather the mechanism through which these changes become exacerbated and harmful to society at large.
It is true that some marriages are bound to fail regardless of the nature of the legal regulation of divorce – the reasons why people divorce and relationships break down are far beyond the scope of this essay. This essay has evaluated three models of divorce based on differing levels of fault: a purely fault based system (as in the pre-Enlightenment period), a mixed system (England) and a purely non-fault system (Sweden). It has been shown that none provides a particularly satisfactory solution to what is, unfortunately, a common human predicament. Just as a purely fault based system offends modernity, so does the English mixed system offend coherency and purpose. The introduction of the “special procedure" in the 1970s signifies the way the way in which the English half-way house has become a legal absurdity in the modern age, unable to keep up with the ever increasing pace of social change. The raucous public debate that accompanied the Government’s failed attempt to reform the law in favour of true non-fault divorce in the 1996 Family Law Act attests to the highly controversial nature of this subject, a political minefield where politicians venture at their peril.
The Swedish model, though commendably far more coherent than the English one, has effectively destroyed the traditional concept of marriage. A Swedish marriage, with perhaps the exception of the wedding itself, is in almost all respects no different to a cohabitation arrangement and as easy to terminate. Many might ask what is the point of marriage under such circumstances; why not simply remain as a cohabiting couple? It is submitted here that marriage, if it is to exist in law, must amount to something more than such a conditional agreement. The point advanced by critics such as Scott and Tsaoussis-Hatzis is that traditional fault-based divorces acted as a deterrent against marriage dissolution. This was so not out of a desire to spite, burden or humiliate parties seeking a divorce, but stemming from a belief that divorce itself – whilst maybe the best solution for the individuals concerned – was bad for society at large. The difficulty of identifying an equitable solution to divorce law represents the dichotomy between these competing values. It is submitted that this is an unsolvable conundrum; however, it is also suggested that if society values the integrity of marriage it must make it an institution which is harder to resile from. Once again, that is not in order to spite individuals, but so that the process might at least have the chance of prompting some to give their union another chance.
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