One party (petitioner) brings forward a petition for

One of the issues we have today, that is seenas being one of the most highly controversial issues is regarding the law ondivorce. ‘Divorce is the legal ending ofa valid marriage contract.

‘1In todays society divorce has become very common and so the rates of divorcehas also increased rapidly. Many people are against the idea of divorce and maybelieve it is wrong for multiple reasons, a popular one being because ofreligion. On the other hand many people may disagree and believe it is trulythe last resort and will be the result for themselves and their family’shappiness. However, even though divorce has become so common for us in todayssociety, to an extent that it’s become part of peoples ‘way of life’, this hasnot always been the case. In fact divorce has only become available until themiddle of the nineteenth century. The rules governing the law of divorce is setout in Part 1 of The Matrimonial Causes Act 1973(MCA)2.

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S1(1)3states that ‘irretrievable breakdown ofmarriage is the sole ground for divorce but irretrievable breakdown is onlyestablished on proof of at least one of the five facts’ which will bediscussed below. In this essay I will be addressing the situation in thescenario between Priya and Patrick and exploring the law on divorce, advisingPriya on the best possible way for her to obtain a divorce.   A petition is granted under MCA(1973)4when one party (petitioner) brings forward a petition for divorce, in which theother party (respondent) may wish to accept or not. S35states that ‘No petition for divorce shall be presented to thecourt before the expiration of the period of one year from the date of themarriage.’6 In this case, Priya is thepetitioner who is bringing forward a petition for divorce and Patrick is therespondent.

Therefore the burden of proof lies with Priya. As it has only beensix months Priya and Patrick have been married, a year must pass from the dateof her marriage before she can file a petition for divorce. In order forPriya’s petition to be successful, she must satisfy the sole ground for divorcewhich is set out in S1(1)7. However if Priya doesnot fulfil any one of these five facts she will be unable to obtain a divorce. Firstly, S1(2)(b)8 states ‘that the respondent has behaved in such away that the petitioner cannot reasonably be expected to live with therespondent.’ For Priya to satisfy this fact, it is not enough if Patrickhas only engaged in unreasonable behavior. She will have to prove thatPatrick’s behavior was of a nature that the ‘right thinking person’ would alsobelieve it would be unreasonable for Priya to live with Patrick. Priya mustalso ensure that these complaints made of Patrick are ‘reasonably precise’.

9 In regards to thisfact, Priya can raise the issue of Patrick causing her to feel ‘humiliated’,’stupid’ and ‘without any political awareness’, simply due to her choice invoting. Another issue she can raise is that their personalities may not becompatible, as she wants to do outdoor activities where as Patrick would ratherstay at home. In the scenario it states that Patrick fails to surprise her withgrand romantic gestures. However, this fact comes with a limit as to whatamounts to unreasonable behavior, so an omission may not constituteunreasonable behavior as the respondent is not breaching any maritalobligations.

10 As to why, Patrick not surprisingPriya with grand romantic gestures may not be enough to satisfy this fact. Italso states that Patrick “constantly nags” Priya because of the amount shespends on household shopping. This may suggest this is an ongoing behaviour ofPatricks and not just a ‘one off’.

The court will take into consideration thepersonality, disposition and behavior of the petitioner and not just of therespondent, in order to determine whether the conduct meets the requirements tofulfil that ground 11 This fact is mainly concernedwith how Patrick’s unreasonable behavior effected Priya. A case thatillustrates this is the case of Buffery12, where the petition for divorce hadfailed as the respondent did not show any unreasonable behavior on thepetitioners part. Therefore failed to meet the requirements of fact B, even though the marriage had apparentlybroken down. In contrast to Buffery13, in Livingston14, the petition was successful as thepetitioner was constantly criticized by her husband which amounted tounreasonable behavior. In this case Mr. Justice Dunn established a ‘jury test’ that asks ‘what would the rightthinking man conclude about the complaint made of’.15 Similar to Priya’s situation in Owens16, the husband also refused to consentto the divorce.

It was held that making twenty seven allegations would not makethe petition stronger then only focusing on a few main ones. Hence, Priyashould focus on the main issues instead of raising multiple, so it does notlook as if she is ‘nit-picking’.17 Secondly, S1(2)(d)18, states ‘that the parties to the marriage have livedapart for a continuous period of at least two years..

.and the respondentconsents to a decree being granted’.’19 In order for Priya’s petitionregarding this fact to succeed, she must establish that a separation of twoyears has happened immediately before the presentation of the petition and thatPatrick has agreed with the petition. Priya and Patrick can live in the sameaccommodation but still live apart,20 as long as they areboth living their separate lives. This is illustrated in the case of Hollens,21 where a husband andwife were living in the same accommodation but did not speak, eat or share abed. Although Priya is sleeping in a separate room to Patrick, she is stillengaging in activities such as, cooking their meals and doing the laundry willnot be seen as living apart. A similar case to Priya’s situation is Mouncer22, where the court held, spouseseating together and talking to eachother did not amount to living apart.

Therefore Priya may fail her petition for this fact, since she failed toestablish that she has been living apart from Patrick for two years. Also thissection states that Patrick would need to consent to the decree being granted,which he did not.  Furthermore, if Priya’s petition for fact b is unsuccessful she can petition for S1(2)(e)23, which states ‘that the parties to the marriage have lived apart for a continuousperiod of at least five years…’24 This fact requires Priya and Patrickto live apart for five years instantly after the date of the petition filed. Althoughthis fact requires a lot of patience, Priya will not need to prove wrongdoingon Patrick’s part or get his consent for the divorce.

25 As a last resort Priyacan rely on fact e to secure that herdivorce is granted. It may be a good option for Priya to move to Belize withRobert as it would be a great opportunity for Priya to start moving forwardwith her life, whilst the clock is also running. However, S5 26, provides a defence forPatrick if the divorce results in ‘grave financial or other hardship’27. The case of Rukut,28establishes that “grave”amounts to financial as well as other hardships.29 Referring back to thescenario, Patrick as a Roman Catholic would not agree to the divorce as it’sagainst his religion and therefore may raise this as a “grave” issue. However thecatholic church allows a ‘declaration of nullity’ known as annulment, whichPatrick can get through a Vatican.

This would make the marriage void in theeyes of the law and would allow Patrick to remarry in church.30 The No FaultDivorce Bill was introduced in 1996 under The Family Law Act 1996.31 The purpose of thisbill was to simply provide straight forward solutions within the law. Anyonewho wished to file a petition for divorce were required to attend aninformation meeting under this act.

The purpose of the information meetings areto provide the parties with information on the divorce proceedings andcommunicate to the parties the different facilities available to them, as wellas any advise in relation to marriage breakdown. One of the key aims was to’persuade couples to be reconciled’. The information meetings encouragedcouples to consider saving their marriage and councilors were available to anyof the couples who wished to do this.32 However this bill didnot get implemented and was in fact repealed in 2001, due to the requirement onthe parties to attend “information meetings” to encourage reconciliation whichproved unworkable.

33 In October 2015, Richard Bacon MP introduced the No Fault Divorce Bill 2015-2016 intoparliament. The purpose of this Private Members’ Bill was to reform the law ondivorce by introducing another fact to the MCA34 on joint petition. Thisrequires both spouses to mutually agree on divorce. It enables couples toobtain a divorce with a much more fast paced process and without having tosolely rely on fault based facts and the need to establish long separationperiods that come with the current law. 35 According to the No Faults Divorce Bill 2015, In orderfor Priya to be granted a divorce, she will need Patrick’s consent.

Thereforedue to the fact that a mutual agreement on the divorce does not exist, sincePatrick did not consent, unfortunately Priya would fail to satisfy the reformsuggested in this bill. This bill’s main concern focuses on encouraging thecouples to reconcile. As Priya is adamant on obtaining a divorce and has nohope of reconciliation this would only result in her waiting an excess amountof time.  The current law on faultbased divorce remains an issue that is highly criticized in today’s society formultiple reasons.36One of the key reasons as to why this area of the law is subject toinconvenience is due to the law being ‘confusing and misleading’. This stemsfrom the fact that parties must prove one of the five facts as a cause for theirretrievable breakdown in the marriage.

This may lead the parties to claim oneof the facts that may not be the real cause of the marital breakdown. Anotheraspect that is criticized is that the law that appears in the statute book isvery different to the way that law is practiced. The President of the FamilyDivision Sir James Munby admitted: “Thereality is that we have had divorce by consent for 30 years”37,however this is not what the actual law states.38Another reason for criticism is because ‘it distorts the parties’ bargainingposition’. This argument roots from when one spouse is adamant for the divorcebut the other is not and is completely fine with delaying the process or cannotconsent for religious reasons, similar to Priya’s situation. In thesesituations, the party that is not so keen on the divorce can use his positionas a weapon that can be used to an advantage in the bargaining process. Thecurrent law also produces hostility and bitterness, as it involves the partiesto look back on all the bad times of their marriage, which loses anyencouragement for reconciliation.

According to the Law Commission39,the separation for two years is not fair to those who may not be able to affordanother accommodation for two years.40 In the United States,people are offered a number of marriages from which they can choose the onethat matches them best. For instance, a couple select a marriage that couldresult in divorce when either spouse chooses. Although if the couples wantedthey could also pick a marriage that included a clause, that declared divorcecan only be a result, only if adultery was committed. These marriages withclauses are known as ‘covenant marriages.

‘ This approach to divorce in The USAis much more preferred then the law in the UK as it provides a freedom ofchoice, as parties have the power of entering a marriage with the power to controlthe level of commitment, as well as getting out of it whenever they want.41 In Egypt, divorce byagreement is seen as the most convenient type, in the opinion of the judges,since it was not down to them to favor one spouse over the other.42This type of divorce involves both spouses coming to a mutual agreement andconsenting to a divorce.43The procedure for this divorce is often considered most favorable as it doesnot require any fault to be proven and therefore would develop the UK’s law inrelation to obtaining a divorce if it were to be enforced.

However it will notbenefit Priya in her situation since Patrick has not consented to thedivorce.   Although in the UKdivorce on demand is not practiced, it is in a number of other countries as thelaws are ‘based on the principle that a spouse’s desire to dissolve themarriage shall be respected.’ For instance, in Finland and Sweden divorce ondemand is practiced but often the spouses are required to rethink theirdecision (usually six months). Referring back to the scenario, divorce bydemand would be the most convenient type of divorce for Priya to file for as itrequires only one party to consent to divorce.

If this type of divorce wasenforced in the UK, it will offer support to many people like Priya,  who are unhappy and feel as if their trappedin a marriage because their spouse is refusing to consent to a divorce.Therefore this approach, will be the most beneficial reform to the UK as itrespects the wishes of all those in similar situations as Priya. Also, in orderto make the approach more effective the rules can be adjusted. For example, aseparation period can be introduced, where the spouses do not cohabitate for aspecific period of time, similar to countries such as, Iceland and Norway.

44 In conclusion, havingexplored the possible options for Priya, in obtaining a divorce, it is clear tosee that the process will not be so straight forward. Priya needs to waitanother 6 months before she can file a petition, to complete the one year wait.If her petition for fact B is unsuccessful and Patrick remains adamant on hisdecision to not consent to the divorce, she may have to rely on fact e and completethe wait of five years separation. Although fact e requires a lot of patience, itmay be the best option for her if all the others prove unsuccessful. This is becauseher divorce will be secured, even if it’s after a five year wait. Also if Priyamoved to Belize with Robert, she can start moving on with her life whilst thetime starts to run. Once the court has announced themarriage to have irretrievably broken down, they will issue a decree nisifollowed by a decree absolute.

Once Priya has been issued with a decreeabsolute she is only then considered divorced and free to remarry. Overallthe current fault based system in the UK is seen to be lacking in some aspects.For example some petitioners may exaggerate the respondents ‘unreasonablebehavior’ in order to obtain a quick divorce. Therefore it is clear to see thatthe current law is in need of a reform to improve its effectiveness.    1 David Knox and Caroline Schacht, Choices In Relationships(Thomson Wadsworth 2008). 1462 The Matrimonial Causes Act 19733 The Matrimonial Causes Act 1973 S1 (1)4 The Matrimonial Causes Act 19735 The Matrimonial Causes Act 1973 S36 ‘Matrimonial Causes Act 1973’ (Legislation.gov.uk,2017)

legislation.gov.uk/ukpga/1973/18> accessed 13 December2017.7 The Matrimonial Causes Act 1973 S1 (1)8 The Matrimonial Causes Act 1973 S1(2)(B)9 Wendy Mantle, TheHandbook Of Separation And Divorce (Routledge, 2002 2017).

3910 Pheasant v Pheasant 1972 1 All ER 58711 Ash v Ash 1972 1 All ER 58212 Buffery v Buffery 1988 2 FLR 36513 Buffery v Buffery 1988 2 FLR 36514 Stallard-Livingston v Stallard-Livingston 1974 Fam 4715 Frances Burton, FamilyLaw.9516 Owens v Owens 2017 EWCA Civ 18217 ‘Owens V Owens: Time For Reform Of Divorce Law?’ (AndersonRowntree, 2017)accessed 14 December 2017.18 The Matrimonial Causes Act 1973 S1(2)(d)19 Frances Burton, FamilyLaw.14520 Naylorv Naylor 1961 2 ALL ER 12921 Hollensv Hollens 1971115 S.

J. 32722 Mouncer v Mouncer 1972 1 All ER 28923 The Matrimonial Causes Act 1973 S1(2)(e)24 JonathanHerring, Family Law.14925 Ibid26 The Matrimonial Causes Act 1973 S527 JonathanHerring, Family Law.

149 Talbot v Talbot 1971115SJ 87028 Rukat v Rukat. 1975 Fam 63. 59.29 ‘Divorce Flashcards | Quizlet'(Quizlet.

com, 2017) accessed 13 December2017.30 ‘Annulments (Declarations OfNullity) | For Your Marriage’ (Foryourmarriage.org, 2017)

foryourmarriage.org/catholic-marriage/church-teachings/annulments/>accessed 14 December 2017.31 The Family Law Act 199632 Jonathan Herring, FamilyLaw. 155-15633 (2017)

com/news/britain/21717847-it-time-introduce-no-fault-divorce-england-and-wales-case-no-fault-divorcehttps://www.economist.com/news/britain/21717847-it-time-introduce-no-fault-divorce-england-and-wales-case-no-fault-divorce>accessed 14 December 2017.34 The Matrimonial Causes Act 197335 SUSAN.

HEENAN HEENAN, FAMILYLAW CONCENTRATE (OXFORD UNIV PRESS 2017).5036 Law Commission Report 192 (1990)37 Jonathan Herring, FamilyLaw. 15138 ibid39 Law Commission Report 192 (1990)40 Jonathan Herring, FamilyLaw.15241 Ibid. 16042 Ron Shaham, Family AndThe Courts In Modern Egypt (Brill 1997).11143 Sonia Harris-Short, Joanna Miles and rob George, FamilyLaw.

5644 Jens M Scherpe, TheChanging Concept Of ‘Family’ And Challenges For Domestic Family Law (EdwardElgar Publishing 2016).192 

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