current divorce process

Question 1

matrimonial causes act 1973 (still fault based)

Answer 1

consolidated the grounds for divorce by bringing together the old fault based
system and no fault system (2 years seperation with agreement of 5 year seperation with no agreement)
prevent issue of court and judicial time and made process less complex and time consuming
irretrieval breakdown and prove either:
-adultery
-the respondents behaviour
-the respondents desertion
-2 year seperation with consent
-5 year seperation without consent

Question 2

owens v owens 2018

Answer 2

married 14 years
she claimed he was more interested in work/moody and didnt love her enough cited this unreasonable behaviour
he did not think this unreasonable and so bad she couldnt live with
supreme courts said not enough evidence to support claim
not awarded divorce so would need 5 years
made parliament reconsider the situation as people forced to use most extreme examples of unreasonble behaviour

Question 3

debate created the divorce and disssolution and seperation act 2020

Answer 3

came into effect april 2022
-still must be married for minimum of 1 year before can divorce
-replaced the requirement of one of the 5 reasons to just stating irretrievable breakdown of marriage
-removed the possibility to dispute the divorce expect on limited technical grounds (lack of jurisdiction,fraud,proecdural aspects not complied,invalidity)
-new minimum period of 20 weeks from the staty of proceedings to conditional order of divorce being made
-nullity still remains

Question 4

no fault divorce- against

Answer 4

-moral or religious view- “making divorce easier threatens the the sancity of the institution. people may give less thought to the conseuqneces of marriage if divorce is made overly easy”- Freeman jones scolititors website

-“fails to hold partners accountable for unreasonable behaviour…this in turn can make it difficult for the other partner who may feel that justice hasnt been served”- ibid

-“Blame, accusations and strong feelings of injustice are the norm in divorce and they get in the way of couples making reasonable arrangements about children and money”- Richards 1994 (does not deal witht he issues that really conern the parties) psychologists state balme is needed for pschological health

-“it is the laws responsibility to uphold societys values and to discourage conduct which damages society”- Herrings Family Law (the law should declare the wrongdoes and punish)

Against above-
- the law can not be responsible for deciding who caused the end of the marriage- Bainham 1995 not easy to determines for example someone may commit adultery because of the coldness of their spouse

-undermines marriage which is a life long obligation but are allowed to end whenever they wish- Barnoness Young “it is that breaking of marriage vows, breaking of a civil contract does not matter”

Question 5

no fault system- for

Answer 5

-little value in forcing the couple to stay married

-human right to divorce, would be against the right to family life or marry (a duty on the estate to provide an effective law on divorce)

-fault system promotes bitterness

-the law cannot ttruly determine whos to balme

Question 6

legal aid and ADR for divorce

Answer 6

LASPO cut legal aid
no legal aid available unless domestic abuse/forced marriages or child abuse (means tested)
Re H 2014- agreed on terms of divorce, judge pointed out mother who had special needs and denied legal aid was disadvantaged without legal representation

ADR-
mediation and collabarative practice and arbitration
CAFCASS- trained social workers, cases involving children and dispute, social worker assigned and will investigate family and interview, present a report to court of what is in the best interest of the children