family law Resources

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Law On Divorce

Critically Evaluate Whether The Law On Divorce Is Fair To Both Parties.

It was only as late as the mid-1960's that the Law Commission and the Church of England carried out reports which led to fundamental changes in the law relating to divorce. Prior to this marriage was considered an indissoluble institution binding the parties for life. The aims of the reforms set out by the Law Commission were stated as being:

Consequently, The Law Commission recommended that the concept of the matrimonial offence was outdated and should be done away with and replaced with the concept of “irretrievable breakdown of the marriage” as being the sole ground for divorce as evidenced by one of the five facts. They went on to recommend that the law should “encourage reconciliation, prevent injustice to vulnerable spouses, and protect children.” This led to the passing of the Divorce Reform Act 1969, and these principles remain the underpinning philosophy of divorce law today.

Further changes were put in to effect under the Matrimonial Causes Act 1973 and a "special procedure" was introduced to permit a party to obtain an undefended divorce as efficiently and economically as was possible. Under the special procedure, the District Judge examines the evidence filed by the parties and provided he is satisfied that the marriage has broken down irretrievably, will grant a decree of divorce. The procedure is informal and largely based on the papers before the court. The only part of the procedure open to the public is the pronouncement of the Decree itself. The "special procedure" has now become the normal way divorce is dealt with and there are well over 160,000 decrees being granted in this form every year. In contrast defended divorces are extremely rare. There may be situations where one party considers that the marriage is not over and does not wish to end it, however the law is not willing to force parties to remain in a marriage against their will. Whether this is fair is a matter of perspective.

Divorce courts today not only end the marriage but are more and more embroiled in matters that the parties themselves can not resolve. These will involve issues such as child support the division of matrimonial assets and deciding custody matters. Divorce matters will be dealt with by specialist family court judges and will involve three main type of action. Firstly, there is the divorce itself. This is the process by which the marriage is brought to an end and concludes with the pronouncement of the Decree Absolute. Secondly, there is ancillary relief which is the process by which the matrimonial assets of the parties are to be divided and financial provision is made for the parties and any children. This is usually the most contested part of the divorce process with proceedings often continuing well after the decree absolute has been granted. Thirdly, there may be proceedings relating to children such as who will have residence of the children and the contact arrangements with the absent parent. Usually, matters relating to children are resolved by agreement, however where there is dispute the court is asked to decide these issues and proceedings can be very bitter indeed.

Legal Aid is available in family cases to ensure that the rights of economically vulnerable parties are protected although there have been significant reforms to the legal aid rules which make it harder to obtain in practice. However the reality is that the working spouse will be unfairly affected by Legal Aid rules. A homemaker who runs the home and looks after the children will be able to obtain Legal Aid for divorce because he/she has non existent or low, income. The income of his/her estranged spouse is not taken into account for legal aid purposes. The working spouse will not be entitled to Legal Aid because he/she has been working and falls outside the income requirements. As a result the working spouse will usually have the burden of substantial legal bills and would clearly be at an economic disadvantage from the outset.

It is important that family courts should be able to inspire confidence in the people using them and also in the general public if their judgments are to be accepted in sensitive areas of people's lives. In order to inspire such confidence the courts must be seen to apply judgments which are fair and just too all parties concerned.This is by no means an easy task as the central question is what do we mean by the term fair?

The very fact that one of the spouses has presented a divorce petition means that the marriage is over even if the other spouse disagrees. Defending a divorce is extremely difficult and expensive although there are some rare situations where a petition has been successfully defended.

The result is that upon the marriage being dissolved, the Court has almost unlimited powers to divide up all the marital assets. The reluctantly divorcee can not prevent this process. Under the current law it is not possible to enter into binding pre-nuptial agreements which currently can only be admitted as evidence as to the intention of the parties. This is considered unfair by many spouses particularly those wishing to protect assets acquired prior to a marriage.

The House of Lords in the leading case of White v White [2000] 13 were asked to consider the division of assets on divorce. Ancillary relief settlements have recently been highlighted by high profile cases such as that of Sir Paul McCartney and Heather Mills and that of Julia McFarlane and Melissa Miller. These cases highlighted the trend for parties to be treated as having made an equal contribution to the marriage where one is the breadwinner and the other a homemaker. These have resulted in big payouts to spouses, 48 million in the case of Mrs Charman.

Clearly the courts findings in the case of White were hailed as a fundamental deviation from the traditional approach adopted in ancillary relief cases. The Matrimonial Causes Act 1973 provides in section 25(2) (a-h), that the courts must have regard to, and duly consider a list of various relevant factors when asked to decide any ancillary relief application. However, there is no indication of the value to be attached to any of them. Lord Nicholls in the case of White stated that:

“The weight, or importance, to be attached to these matters depends upon the facts of the particular case.”

One of the most urgent factors that the courts are required to consider under Section 25 of the Act is the relative needs of each party. In practice this has evolved over the years so that the needs of parties have assumed paramount importance when deciding how marital assets are to be distributed. In the majority of cases the reality is that there is often not enough to provide for the needs of both spouses. The courts will try to divide the assets as equitably as possible. However, in those high profile cases where the parties have assets well above what their needs demand; the courts have applied the principle of ‘reasonable requirements' of each party. Historically, the courts have attempted to shield wealthy men from claims by their spouses by restricting the sums awarded to the wife. The House of Lords decision in White made it clear that this approach was wrong and set a precedent in cases where there are surplus assets to be divided between the respective parties. The House of Lords went on to provide guidelines on how the courts should with applications for ancillary relief and the principles governing them under the Matrimonial Causes Act 1973.

The Leading Judgement Was That Of Lord Nicholls Who Stated That:

After White, it would seem that a court if provided with a similar situation would respond by deciding on an equal division of assets between the parties. White makes clear that the courts view is that there should be no discrimination between the spouses and their individual roles. The concept at the heart of such decisions should be a desire to achieve equality and fairness between the parties.

Divorce is no longer based on the fault or bad conduct of one of the parties, which some may argue is unfair in itself, the conduct of the parties is however a matter to which the courts must have regard on an application for ancillary relief. Section 25(2) (g)) of the Matrimonial Causes Act 1973 states that, conduct must be taken in to account if it is conduct of such a nature that it would be considered inequitable to not give it due consideration. Traditionally, for conduct to be considered it has usually had to be of an extreme nature. However in the Court Of Appeal case of Miller, McFarlane argued that the issue of conduct was being raised by the back door. When the case went before the House of Lords their Lordships made clear that the Court Of Appeal should not have taken conduct in to account in this way.

Post White it is clear then that there has been a shift towards the concept of a fair distribution of assets on divorce with the stay at home spouse being put on an equal footing as the spouse who goes out to earn. Equally any conduct of an extreme and negative nature can be construed as providing a negative contribution. What is clear is that disentangling personal relationships is by no means an easy task. There are also solid pragmatic reasons for the courts avoiding being embroiled in the acrimonious recriminations of the parties as these would not only be expensive but ineffective in helping to resolve the issues between them.

Although matters of a financial nature cause acrimony and consternation, it is the issue of the arrangements for the children of the parties on divorce that attract accusations of an inbuilt gender bias towards women. Upon filing a Petition for divorce the petitioner must also file a document known as the Statement of Arrangements for the Children, in which arrangements for the children such as residence and contact will be set out. If these arrangements are in dispute then an application will usually follow under the Children's Act 1989 and these proceedings can often be bitter.

The Family courts in the UK have been at the front line of an ever growing conflict between parents on issues of residence and contact on the breakdown of the marriage. With the advent of the Children's Act 1989 and the overriding principle that the court should consider the interests of the children as paramount, it was hoped that these conflicts would be reduced. However it is clear that what is fair for the parents is not always in the best interests of the children of the family. There is acute frustration over issues relating to children and how much contact the non resident spouse has with his/her children. Such intense conflict can in no way be fair on the children themselves and in fact is harmful to the family in general and in recent years there has been a rise in increasingly active movement which aim to secure the rights of fathers.

The nature of parenting itself has changed and parents nowadays wish to be more involved in an active way in the upbringing of their children. This desire is often perceived by one party as being frustrated by the other.

Father's rights activists obtained widespread publicity in 2003 and the movement itself has its origins in the Family's Need Fathers movement. Many of these activists donate their time by providing services which are aimed at supporting fathers who are finding it difficult to cope with being separated from their children. These groups also campaign for the rights of other marginalized parties such as non resident mothers, stepparents and grandparents, all of whom may have strong bonds with the separated children.

Activists in the movement seek to reform family law on the basis that “children benefit from being raised by both parents” and argue that “children should be allowed to interact with both parents on a regular basis as of right.” According to a committee of Members of Parliament on 2 March 2005, the family courts give “separated and divorced fathers a raw deal and do not give enough consideration to preserving the relationship between the father and his offspring”.

Further, the Child Support Act in the UK aims to ensure that absent parents pay towards the support of their non resident children. It is argued that the calculations of the amount to be paid do not reflect the often limited time that the child spends with the absent parent. Many judgments have been criticized for not allowing fathers to be more involved in their children's lives and the courts have additionally been criticized for failing to enforce their orders.

This increasing conflict over children on divorce of the parents threatens a situation where the children are fought over more like possessions and in some cases are tactically used by the parents. There are a number of issues which are highlighted by these fathers' rights movements. Firstly the issue of Residence, which is rarely given to the father after a divorce, as it is considered that the interests of very young children are best served with the mother and that removing them from their mother would be detrimental. In addition, Shared Residence Orders are rarely made which results in fathers arguing that they are unable to perform effectively in their capacity as fathers. In fact even where contact is ordered the courts are unable to effectively enforce their own orders as it is not always in the best interest of the children to do so. This unfair system is further exacerbated by the fact that a mother will get Parental Responsibility automatically. Fathers only do so if they were married to the mother, have a Parental Responsibility Agreement in place or signed the birth certificate. Fathers are obliged to pay means tested Child Support irrespective of whether they are allowed to see their children whilst the mothers income is ignored for the purposes of these calculations. The issue of what is fair in the arena of the Children's Act 1989 is a complicated and emotive one and for which there are no simple solutions. However what is arguably fair is that the courts quite correctly largely ignore the recriminations of the parties and focus on the best interests of their children.


In conclusion, as societal values and opinions change so Family Law needs to evolve with the times. It is apparent when examining recent case law that judges are attempting to accurately reflect modern views. Recent ancillary relief cases highlight the shift towards giving equal value to and compensating the homemaker. The bad behaviour of one of the parties is to be taken in to account in appropriate cases as being of a negative impact on the contribution made by that party to the marriage. In all cases the result should be ‘fair' in as far as is possible. However, there is a fundamental truth, that every one of us has a different perspective of exactly what constitutes fairness, and as Lord Nicholls stated in the case of White, fairness like beauty is very much in the eye of the beholder . It is without a doubt a difficult task to apply principles of fairness and justice to cases that come before the courts and that have universal application given the enormous number of scenarios that these rules must be suited to.

David Hodson points out that before we can decide questions of fairness we must first resolve as a society what it is that we want to accomplish on the breakdown of marriage. He argues that matters relating to what is fair have become too formulaic and inflexible and so have failed to take account of different working and lifestyle patterns and expectations in class, ethnic, gender and age groups.

Further these questions of justice and fairness in divorce raise issues of power relations. Thus we must examine the relations between the state and the family, between men and women and between adults and children in the family. To raise these issues is to broaden the terms of the debate in a way which can provide for the possibility of all voices to be heard.