To Have and to Hold – Until the Law do us Part?

To Have and to Hold – Until the Law do us Part?

As controversial as it is, divorce law has triggered an increasingly heated political debate due to the complications it brings to the deeply embedded concept of the institution of marriage and family in England and Wales. Marriage, as highlighted by Andrew Bainham, ‘is a legal status which imposes reciprocal duties on the spouses'[1] and it is with this union in which civil marriage and civil partnered couples[2] will acquire legal rights and responsibilities in relation to each other.

Divorce procedures, however, do not come as cheap as one might think. It is a long and enduring process in which both parties must be able to find the funding to support the relevant court procedures and legal representation. In light of today’s current circumstances, it will be difficult for a number of people to obtain legal representation for divorce due to changes to qualification criteria for legal aid in England and Wales. As such, many will not be able to get financial help with their divorce and custody battles. Obviously, an increased sense of fear is shared amongst individuals and legal professionals alike since these changes will emphasise the deterioration of access to justice as it is not being sufficiently supported, inevitably weakening the position of vulnerable people.

In this article, the concept of a mixed-fault system in divorce procedures will be further explored, as will the question of whether there exists a discernible factor which can provide a solution to this problematic legal area.


Prior to 1857, the ability to seek divorce was only available to a select few – those wealthy enough to obtain a Private Act of Parliament – and it was often only an option for the male partner. The Matrimonial Causes Act 1857 was the first Act to introduce the concept of judicial divorces, although there was a difference between the grounds available to a husband and those open to a wife. A husband could rely on his wife’s adultery, but a wife could rely on a husband’s adultery only if there were aggravating circumstances. However, the Matrimonial Causes Act 1923 placed the husband and wife in the same position and, in 1937, a move away from adultery as a basis for divorce came with a widening of the categories, although the categories were all ‘matrimonial offences’ such as cruelty, desertion, insanity or adultery.

Divorce procedures, however, do not come as cheap as one might think.

The modern law on divorce stems from the Divorce Reform Act 1969 (re-enacted without change in the Matrimonial Causes Act 1973) where the decision to abolish the old grounds for divorce was made. It established the following singular ground for divorce as stated in Part 1 Section 1(2) of the 1973 Act: that the marriage has broken down irretrievably. However, this can only be proven if one of the five facts can be established. The five facts in the 1973 Act comprise of the following fault-based facts: adultery (Section 1(2)(a)), behaviour (Section 1(2)(b)), desertion (Section 1(2)(c)); and the following non-fault separation grounds: two years’ separation (Section 1(2)(d)) and five years’ separation (Section 1(2)(e)).

It is to be noted that, whilst on the one hand there is a right to marry in Article 12 of the European Convention on Human Rights, on the other hand there is not an inherent right to divorce, as demonstrated in the case of Johnson v Ireland (1987) 9 EHRR 203:

…the ordinary meaning of the words ‘right to marry’ is clear, in the sense that they cover the formation of marital relationships but not their dissolution. [3]

This was justified by the fact that:

[T]he European Court of Human Rights cannot, by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset. [4]

In Dennis v Dennis [2000] Fam. 163, it was common ground that both parties entered into the marriage in the genuine belief that the respondent had been lawfully divorced in the United Kingdom and that he had, accordingly, the capacity to contract into a lawful marriage. However, what this case shows is that divorce will not necessarily be granted just because the parties are married to each other, but that the statute sets out a scheme to enable spouses to divorce each other by means of clear and well-recognised procedures. [5]

A mixed system?

Often characterised as a ‘mixed system’, the law on divorce has gone through an extensive review.

Arguments in favour of a non-fault system

It has been suggested that the ground of two years’ separation is not easily accessible to those who are incapable of affording alternative accommodation for those two years. Consequently, a fault-based ground must be used or one could wait for five years – only emphasising the system’s injustice. Additionally, the system has been described as encouraging the parties to use fault-based grounds as they are easier and faster to use. As a result, this can produce unwanted hostility and suffering through the constant use of allegations between the parties with no hope of reconciliation. This may also affect any children involved, who are ultimately the most fragile components during their parents’ emotional court turmoil.

On a subsidiary note, the prevalent psychological need to blame the other party for the failure of a marriage begs the following question: to what extent is the law able to intervene in personal family matters? As stated by Shelley Day Sclater and Christine Piper:

The notion of fault, of attributing blame to one party and exonerating the other, is what the legal system should be about, it is what ensures that justice is not only done but seen to be done. [6]

It is to be noted that, whilst on the one hand there is a right to marry… on the other hand there is not an inherent right to divorce.

However, it can be argued that this inevitable notion of blame can distort the parties’ best interests in amicably settling their divorce.

Arguments in favour of a fault-based system

However, the proponents of maintaining a fault-based system believe that if it is too easy to divorce then the idea of marriage will become devalued. It is presented in the following argument: resembling modern business partnerships, the characteristics of a marriage draw are analogous in that both concepts can be seen as an institution of trust, which enables two people to have the confidence to make long-term investments in their relationship. In the words of economist Robert Rowthorn:

[T]he idea of fault is central to the notion of marriage as a commitment. By restricting unilateral exit from marriage without just cause, or by making the terms of dissolution depend on marital conduct, fault-based divorce penalises those who break their marital vows and helps to protect those who fulfil their obligation. [7]

This also highlights that the removal of adultery as a basis for divorce might be thought to undermine the marital obligation of fidelity.

Attempts to reform

An attempt to reform was seen in the introduction of the Family Law Act 1996, which promoted the institution of marriage in the sense that it considered divorce to be a process over time rather than a one-off event. What was highlighted was the overriding principle of how to save those saveable marriages and end those which cannot be saved with a minimum of distress and humiliation and without having to ascertain who is to blame for the marital breakdown.

The overall objective ought to be to allow couples to divorce with dignity.

However, it was never implemented since the pilot programmes had shown that the system put forward was impractical and defective. Also, due to its non fault-based characteristics, it was argued that it would weaken the idea of marriage and thus diminish its institution.

A more humanistic approach is to take a holistic view of divorce where lawyers should:

[A]dvise, negotiate and conduct matters as to help the family members settle their differences as quickly as possible and reach agreement, while allowing them to reflect, consider and come to terms with their new situation. [8]

Children should not be viewed in isolation from the finances and clients should not be told that certain personal concerns are irrelevant, purely because these are matters upon which the court has no power to make orders. [9] It is disheartening to realise that lawyers may possibly interfere with the court process in order to make it more user-friendly, when in fact courts are probably the worst places to provide divorcing couples with closure.


The decision not to implement provisions of the Family Law Act 1996 does not mean the end of reform for divorce law. In fact, this has opened the gates for further adjustments and considerations for a reformed system. What is important is to create a system where the levels of animosity and bitterness of both parties are reduced and possibly extinguished in order to create a platform of encouragement for people to divorce responsibly without have to pinpoint the other party’s fault.

However, it is yet to be seen whether the new cuts in public legal aid will allow couples to divorce responsibly or whether they will merely succumb to the system that they have been unduly provided. For the majority of people, family breakdown is a traumatic and exceptionally difficult period to experience in regards to their future financial stability, their home and their children. If the provision of legal aid is to be severely cut, this indicates that a number of people will not be able to afford legal representation to receive advice or be represented in the court, thus severely impacting their right to legal representation. Without this legal representation, the probability of a level playing field seems diminished as some parties will be better equipped financially than the opposing party, who will have to face the prospect of having to defend themselves without the same financial resources. As a result, this distorted equilibrium will also need to be reconsidered. The overall objective ought to be to allow couples to divorce with dignity.

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