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What is The Nature of Divorce Law in England and Wales

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Brief History of Divorce before the Matrimonial Act

In England and Wales, the major fault of divorce since the traditional days was that it was only given to men before enacting the marital Act. In these countries, only men could openly file for divorce and get the chance of having it implemented. It could only be awarded through actions of their respective parliaments, which made the process very costly and affordable to only men. This implied that divorce proceedings were only instigated by the wealthy men who could afford to pay for the proceedings. For instance, through a church court headed by the Archbishop of Canterbury, King Henry VIII was granted a divorce. The church courts reserved the privileges and powers of dissolving marriages at about this time and in the following years and only favoured men in their rulings. The legislative bodies in charge of divorce were the courts of the Arches and the canon law of the Church of England before enacting the marital Act. The divorce law was not administered by ordinary court barristers, but by civil law advocates, thereby adding to the secrecy of this process. The civil laws used were flawed and did not guarantee women the marriage rights they wanted.

The Nature of Divorce Law in England and Wales

The problem of divorce was reserved for wealthy men who could afford to pay private bills or ensure that an annulment process was followed that was quite difficult to work through. In public trials, with the cases being carried out in the common house, a couple’s marital problems were addressed. Lord Aberdeen introduced several bills to establish civilian courts to control this issue between couples, but his attempts were not successful. This scheme was strongly criticised as it gave priority over national matters to the problems of a rich individual. The bills raised to govern divorce typically achieved extreme opposition from many lawmakers who viewed the establishment of such courts as abuses of the authority of their church. In the year 1858, the marital law was eventually put into effect on 1 January.

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Development of the Current Divorce Law in England and Wales

In 1857, by enacting the Act on matrimonial causes, the first divorce laws in England and Wales came into being. It dealt with the practises of the former anti-women discrimination statute. The display was passed by the nation’s parliament, and it brought changes in the areas of divorce where many shortcomings were previously witnessed. This is because the Act later transferred the jurisdiction from the clergy to civilian courts to instigate a divorce. The Act also stipulated that only if he could show her adultery would a husband be given a divorce against his spouse.  Wives in England and Wales were told of their right to divorce their husbands. It provided that during their marriage, a woman could prove the unfaithfulness of her husband along with instances of cruelty, incest or desertion. The fault of the acts was that it made it possible to establish unions that resembled contracts rather than sacraments. It also encouraged the incidence of divorces among poor people and failed to do so in the previously used rules. Divorces were once reserved for privileged and affluent citizens in both nations. The Act also allowed the development of a divorce court dealing with the causes of marital problems. It gave these courts the authority to hear and resolve civil divorce cases that had only previously been heard in the Commons House. The courts were first put under the supervision of Sir Cresswell, who was very active in establishing their strength, self-esteem, and effectiveness. In previous law, these clauses were not present. Unlike in the past, the passage and implementation of this Act caused the number of divorce petitions heard in the courts to increase. The number of petitions brought before it, for instance, increased enormously in the year after its enactment. As compared to the previous year, there were three hundred divorce requests by spouses, where only three cases were heard.

The matrimonial legislation of 1857 did not have any amendments to it until the 19th century, which added to its faults. Various parties, including the catholic church of Rome, England’s church, and the mother’s unions in England and Wales extensively advocated for the liberalization of the divorce law of 1857. This legislation was much faulted since it only eased the men’s chances of divorcing their spouses. This is because they were only required to divorce their women by proving they had committed adultery. On the other hand, their women had to prove cases of incest, desertion, and cruelty for the proceedings to be instigated for them. This brought about creating a Royal Commission in the year 1912, which recommended that the divorce process be liberalized. In 1923, a female-friendly union of societies involved in advocating for equal citizenships also approved the issue of liberalizing the proceedings they viewed as faulty. This amendment came through an author called A.P. Herbert, who raised the public’s opinion through his works on the issue. He was elected as the parliamentary representative for Oxford, which gave him the opportunity of privately presenting a bill in the country’s legislative body.  Through the support of Rupert Bere, Evesham’s MP, the account was able to pass all the required readings and obtained the approval of the house before being signed into law by Stanley Baldwin, the then prime minister. The rule changes allowed for divorces to be granted on additional grounds such as insanity, drunkenness, mental breakdowns, or illnesses. This was previously not the case since the past legislations imposed many restrictions on the proceedings.

In the year 1969, a significant alteration occurred with the Act aiming at reforming the faulty divorce proceedings in both countries. The passing of this reform law facilitated a divorce happening among couples who had only previously separated for two to five years. It suggested that marriages could be broken if one of the married partners could prove their relationship’s faults. It provided for divorce when marriage relations worsened with neither partners seeing the flaws.

 The amended version of the Act on matrimony of 1973 is currently being applied in both Wales and England.  The current law only advocates for a sole reason for instigating a divorce, which happens if a marriage has irretrievably broken down. The courts in charge of enforcing the divorce have to certify specific facts before granting the divorce, which did not happen in the past. These facts include adultery of one’s spouse, unreasonable behaviours, desertions of more than two years and the living apart from each other for two or more years. When the parties to a divorce have lived apart for more than five years, the courts do not need to obtain one party’s consent before instigating the proceedings for divorce.  However, the courts require a spouse’s support when his partner is seeking a divorce, and they have been living apart for two years and below. Proceedings on finances and children in the divorce cases are all run separately. These provisions were previously not availed in the past legislations, which made them faulty. The current divorce legislations do not advocate for divorces during the first year of a couple’s marriage.

The current law in England and Wales regarding divorce classifies it as a clean administrative act, which requires both parties’ consent for it to be applicable. Only their men’s support was needed, making the laws faulty since the men could easily abuse them. The current law is applied in both countries and emphasizes the need to resolve issues concerning a couple’s children and assets before the issuance of the final decrees. It also provides for any partner in a marriage to instigate the proceedings for the dissolution of a marriage as long as a person has been domiciled or is a country residence for a year. This eligibility check occurs before the courts accept the application for the divorce proceedings in a marriage. The courts dissolving a union are required to evaluate the evidence brought before them to make appropriate decisions accurately. These cases typically run for four to six months but mostly depend on the facts and evidence presented by the different participating parties. None of these provisions had been availed in the previous laws, which made them faulty since they were biased against women.

Outline of Matrimonial Causes Act (MCA)

The matrimonial causes act of England and Wales originally came along in the year 1857. This Act came about due to couples’ problems in their marriages and the faults in previous legislation. They only allowed men to instigate divorce proceedings against their wives on the grounds of adultery. It was, however, expensive since it required their parliament’s approval before decisions were reached. It was additionally enforced by councils that were formed by the church. After several consultations between various groups advocating for the amendment of the law in 1923, the courts faced the pressure of accepting the idea of women filing for divorces.  However, they did not give in to the pressure until the year 1937, when the amendment was passed in their parliament to correct the faults stated above. The amendment act of 1937 allowed for various provisions granting permission for a divorce to proceed. This legislation allowed for divorce only on the ground of irreversible breakdowns in marriage, unlike in the past where adultery was the primary basis for instigating one. The legislation currently governing divorce in England and Wales only allows for divorce on adultery grounds, unreasonable behaviours, and desertion.  It also allows for divorce when marriage partners have been separated for two years with their consent or separation for five years and above without each other’s support. The MCA is an act that aims at consolidating the law that relates to marriage proceedings, agreements on maintenance among couples, validation of marriages among citizens of English or welsh nationalities. The previous rules were faulty since they did not cover these issues.

This law provides guidelines on various issues that range from breakdowns in marriages that lead to divorce, provisions supplementing presumptions of marriage breakdowns, petition bars within a couple’s first year in marriage and the preclusion of divorces by judicial separations previously approved. It also provides for the denial of rulings in separation suits based on the hardships the respondents go through and any reconciliation attempts between the parties involved in the marriage. The MCA allows for interventions of the queen’s proctor and offers the courts general powers. The law corrects the previous law faults in their allocation of judicial authorities to the commons house. It stipulates the basis for which a marriage may be declared void or voidable. The unions that are ruled by foreign legislations but recognized under the English and Welsh laws are also defined along with the conditions under which a marriage can be dissolved or presumed dead. This law may greatly contravene on many foreign laws which govern sovereign states with their liberties.

The MCA stipulates that marriage may only be forwarded to a court of law for divorce if it has irretrievably broken down. This condition may occur due to the adulterous acts of one partner which are proven beyond doubt by the other, behaves in a way that is not reasonable or deserts their partner. These provisions have been deemed faulty since they are not the only reasons divorce proceedings can be instigated. There should also be willingness between both marriage parties to enforce the divorce proceedings. The law exempts a marriage partner from being divorced in cases where the couples have peacefully coexisted for more than six months after an adulterous act has been committed by either party. Exemptions on a partner’s behaviour apply when the partners in a marriage have lived together for a period longer than six months. This is usually after the last incident that the applicant for the divorce proceedings relies on as his or her evidence. However, an applicant is seen as having the inability to live with such a partner if the actions are committed in less than six months. In dealing with the issue of desertions during a marriage, the law does not consider periods of less than six months that one accused partner resumed living with his or her spouse during the period of desertion in question. All these provisions were also not previously covered by the past legislations.

The law’s fault is that it also bars petitions for divorce cases from being presented in courts of law before the ending of a year since the marriage took place. It does not even stop the petitions made for divorce in cases that had previously been ruled fit for separation among the parties by a court of law. This is so long as the facts presented in the previous issue are the same as those given in the divorce suit. The issuing of rulings is also constrained by the law, which suggests that a petitioner must provide evidence for proving his or her grounds for the divorce. A respondent in a divorce case is entitled to refuse a divorce being instituted against him due to the financial hardship he or she may encounter after the divorce’s enforcement. He or she is required under the law to justify how the suffering will be experienced to declare the divorce wrong.

The Act requires that the possibility of reconciliation must have been explored and several professionals and witnesses have approved that the marriage is beyond repair. This is also seen as faulty since it could take an extended amount of time to prove it. The law is seen as false since it can adjourn proceedings in instances where there are chances of reconciliation between the partners in a marriage. This is usually carried out because the authorities stipulate the relationship will be able to work well. Agreement or arrangements made under the marriage act before marriage, which are applicable to divorce proceedings brought in a court by any marriage partner, are considered in the rulings in divorce cases. Either party to a marriage has the right under the law of requesting that the order on divorce should not be made absolute. This is done because they have more substantial evidence that has not been brought to a court. This evidence should be provided so that the courts can rescind their previous decisions, recommend further investigations to be carried out or handle the case as it would deem fit. The parties to a divorce proceeding may be able to file an appeal against a decree on divorce if an application for it to be made absolute has not been made three months after a court’s order. The law provides that divorce proceedings can proceed after a ruling for a divorce has been given but has not been made absolute. This occurs when the parties involved in the marriage are either of Jewish origin or their marriage used other prescribed religions in English and Welsh law.

Finally, the Act provides conditions under which a marriage should be made void. It states that a marriage is invalid if it does not comply with the marriage act provisions laid down between the years 1949 and 1986. The conditions include a marriage being in the prohibited levels of a relationship, or either marriage partner is below sixteen. It could also occur if the parties to a marriage have infringed on various marriage law requirements or if either partner was legally married to another person before their current marriage. The law was faulty since it did not provide for marriage between gays and lesbians until recently when it was amended to accommodate them. Marriage under the Act on marriage causes can also be said to be voidable when the petitioner had been given prior information and an open chance to avoid entering the marriage. This should have been done in a way that would have convinced the other partner in a marriage that a divorce would not have been forthcoming. The law’s fault is that it also stipulates that a divorce can be voidable when it is seen that justice will not prevail because of the divorce ruling being made. This is because the law may go against the marriage party’s wishes.

The law provides that foreign marriages applicable in England and Wales are treated as having occurred under their common law. It provides that any of these marriages will be treated as void or voidable under their law with divorces being awarded on the same grounds as those under common law. This is seen as making the law faulty since it could infringe on other foreign laws which one of the partners adheres to. The marriage act suggests that any partner who makes allegations based on perfect bases that their spouses are dead is usually entitled to a divorce and dissolve their marriages. This divorce is given after a petitioner has successfully proven the spouse’s absence for a continuous period of more than seven years. This provision is viewed as being faulty since it does not guarantee a missing partner is dead. The law provides that the children and parties to the divorce proceedings support their different needs. It also includes pensions among aged couples who have decided to indulge in divorce proceedings to go their separate ways. The sharing of property owned by the marriage partners is governed by the Act, which stipulates on the methods of transfer, ownership, and maintenance to be provided. The property could also be disposed of with the proceedings being shared according to each of the parties’ interests in the marriage on the property. Previous laws were viewed as faulty because they did not guarantee children and wives their rights after divorce.

Theory versus Practice of the Law

The divorce law exercised in both England and Wales suggests that divorce is usually granted mainly due to adultery of a partner, desertion and unreasonable behaviours. In both countries, the divorce rates indicate that most divorces happen unjustified behaviours. The acts of adultery and unjustified actions among the married couples have led to the granting of quick divorces among both countries’ citizens. In these two countries, divorces can be given without using a family lawyer who is in charge of the proceedings.  The Act of granting divorces for the parties in a marriage is relatively simple compared to ensuring that justice prevails for all the parties involved in the proceedings. It is also quite hard to ensure that all the concerned parties are given the appropriate care as per the law’s requirement. Finally, in most divorce cases, the child’s custody remains with the mother. This implies that the father will usually end up as the victim of the proceedings. These faults have made these fathers use hazardous measures to ensure that the injustices are adequately addressed. They are always required by the law to cater to their children and wife’s expenses but not maintain custody of them.

The Special Procedure (The Disconnect Between Theory and Practice)

There is a significant difference in how divorce issues are taught theoretically and how they apply in existing law. According to Freeman’s previous studies, very few teachers on health issues concerning divorce have indulged in the field of fighting against it. A few of the professionals handling divorce cases have also been involved in divorces in their real lives. This implies that they lack the required firsthand experience when attending to people undergoing the phenomenon in their private lives. The government and the legislative bodies in both countries have maintained the need for the professionals dealing with these cases to be equipped with guidance and counselling knowledge. They claim this will help support the victims of divorces to evade the consequences of the Act more efficiently and quickly. The victims of divorce have also received their governments support in maintaining their children and livelihoods. This is when a petitioner is left alone by a marriage partner and is unable to raise his family.

Bibliography;
  • Abbott E, A History of Marriage (Penguin Canada 2009).
  • Arnold-Baker C, The Companion to British History (Routledge 2001).
  • Boele-Woelki K, Braat B and Curry-Sumner, I. British Family Law in Action: Parental Responsibilities (Intersentia 2005)
  • Boele-Woelki K, Common Core and Better Law in British Family Law (Intersentia 2005).
  • Bond T, Black J M and Bridge J Family Law (Oxford University Press 2008).
  • Chuah J and Earle R, Statutes and Conventions on Private English Law (Routledge-Cavendish 2005).
  • Davies M, The Blackwell Encyclopedia of Social Work in Britain (Wiley-Blackwell 2000).
  • De Cruz P, Family Law, Sex and Society: A Comparative Study of Family Law (Taylor and Francis 2001).
  • Finlay H A, To Have But Not To Hold: A History of Attitudes To Marriage and Divorce in England and Wales (Federation Press 2005).
  • Freeman S, A Guide to Divorce and the Law (Straight Forward Co Ltd 2009).
  • Marian R, Mediation in Family Disputes, Principles of Practice (Ashgate Publishing Limited 2008).
  • Marsh,D C, The Changing Social Structure of England and Wales (Routledge 2003).
  • Masson J, Bailey-Harris R and Cretney S, Principles of Family Law (Sweet and Maxwell, 2003)
  • Miller G. (ed.), Frontiers of Family Law (Ashgate Publishing 2004)
  • Murphy J, English Dimensions in Family Law (Manchester University Press 2005)
  • O’Halloran K, The Politics of Adoption: English Perspectives on Law, Policy and Practice (Springer 2006)
  • Plowright J, The Routledge Dictionary of Modern British History (Taylor and Francis 2007).
  • Probert R, Family Law in England and Wales (Kluwer Law international 2011)
  • Stark B, British Family Law: An Introduction (Ashgate Pub Company 2005).
  • Tarassenko S and Da Costa E, Family and Matrimonial Law (Routledge-Cavendish 2000).

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