Topic 4 Divorce and Dissolution of Civil Partnerships

Contents

1. A brief history of marriage and divorce

2. What should be the aims of divorce law?
3. The Matrimonial Causes Act 1973
4. Problems with the current law
5. The failure of the Family Law Act 1996
6. Reforming divorce law: the family justice review
7. Supporting the return to fault-based divorce law
8. Past examination questions

1. A BRIEF HISTORY OF MARRIAGE AND DIVORCE

1.1 Background to divorce
Prior to the MCA 1857, the ecclesiastical courts decided the law of divorce. Thus,
although the ecclesiastical courts would grant nullity petitions, they would not grant
divorces. There was no judicial decree of divorce available in any court.

The ecclesiastical courts had the jurisdiction to grant decrees of divorce “a mensa et
thoro” meaning the spouse had no further duty to cohabit with the other, thus it was a
decree of judicial separation. The parties could not remarry.

A divorce was only available by obtaining a private Act of Parliament, this first of such
was the Duke of Norfolk’s Act in 1700. From 1700 to 1856 only 317 such Acts were granted
with only a handful to women.

The MCA 1857 was the first Act in English history to legalise judicial divorce. However, men
and women were not treated equitably in the Act. For a man to divorce, he only had to
prove “simple adultery”, that is adultery and nothing else. However, for a woman to
divorce under the Act she had to prove adultery plus another factor such as bestiality,
incest or cruelty!

The MCA 1923 revised the law and introduced the sole basis of divorce, their partner’s
adultery, that is, “simple adultery” was the ground of divorce for both husbands and
wives.

The MCA 1937 included the adultery ground and also introduced cruelty, desertion of
over 3 years and incurable insanity (the first “no fault” divorce ground in UK law).

Prior to the reform of 1969, it was generally acknowledged that fault was not necessarily
the reason for the breakdown of a marriage, it was more often the symptom of an
already failed marriage. The procedure needed to prove fault was often unpleasant and

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bitter. The Archbishop of Canterbury in 1967 referred to the notion of matrimonial
offences as “quite simply, inept” (“Putting Asunder”). The report recommended that the
sole ground should be “breakdown of marriage” which should be determined in
inquisitorial rather than in adversarial proceedings. The fact that the church was in favour
of liberalising the law of divorce was clear recognition that society’s attitude to divorce
had changed.

As a direct result of “Putting Asunder” the Law Commission proposed draft law “Reform
of the Grounds of Divorce: The Field of Choice” which proposed creating a new ground
of divorce based on a period of separation. However, the government decided not to
adopt all of the Law Commission’s proposals. It was decided to abolish all the previous
grounds of divorce and replace it with the single ground that the marriage had
irretrievably broken down which would be proven by reference to one of five facts.

These proposals later became the Divorce Reform Act 1969 with the objectives:
- To buttress rather than undermine the stability of marriage and
- When a marriage has broken down to enable the empty shell to be destroyed with
the maximum fairness and the minimum bitterness, distress and humiliation.

The Divorce Reform Act 1969 was regarded as a compromise between the Archbishop
of Canterbury’s report, which had recommended the sole ground of divorce as
“irretrievable breakdown” but by adding facts that would support this ground: adultery,
behaviour, desertion, and the two separation facts.

1.2 Some statistics on divorce

In 2012, of all decrees granted to one partner (rather than jointly to both), 65% were
granted to the wife. In over half (54%) of the cases where the divorce was granted to the
wife, the husband’s behaviour was the fact. Of the divorces granted to the husband, the
most common facts proven were the wife’s behaviour (37% of cases) and two years’
separation with consent (32% of cases). Very few decrees (0.04%) were granted jointly to
husband and wife.

There were 114,720 divorces in England and Wales in 2013, a decrease of 2.9%
since 2012, when there were 118,140 divorces.

In 2019, there were 107,599 divorces of opposite-sex couples, an increase of 18%

from 2018. Of these divorces, 62% were petitioned by the wife. The most common
fact alleged in the petitions overall was “behaviour”.

There were 822 divorces of same-sex couples in 2019, 72% of these were female
couples. The most common fact alleged in the petitions overall was “behaviour”.

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2. WHAT SHOULD BE THE AIMS OF DIVORCE LAW?
2.1 Supporting marriage and families
The law should support the institution of marriage. Divorce and family breakdown costs
the state about £37 billion each year. Baroness Deech argues that each time the law is
reformed, the number of divorces rises. Although, it is also argued that many people may
have been living in “empty shell” marriages and divorce when the law simplifies the
process. There is no evidence that changes to divorce law causes more divorces.

Perhaps to discourage divorce the law should make marriage harder rather than making
divorce harder.

2.2 Divorce law should strive to save marriages

The abandoned Family Law Act 1996 attempted to achieve this by introducing
compulsory counselling sessions for couples indicating a desire to divorce. Persuading a
couple to stay married however depends on the circumstances, e.g. if there is domestic
violence or one of the parties wishes to remarry, the marriage may not be able to be
rescued.

2.3 Divorce procedure should be less hostile

Sir Paul McCartney described his divorce as “going through hell”. However, whether
there can be law that provides for a “happy” divorce and post-divorce good
relationships between former spouses is probably idealistic.

2.4 Divorce law should promote a continuing relationship between the ex-spouses where
children are concerned
The law often contributes to the post-divorce bitterness felt by many couples. This is clearly
counter-productive when there are children of the marriage.

2.5 Divorce law should reduce the expense to the state and to parties
This expense usually arises at the stage when financial provisions are being
contemplated. Many breadwinners attempt to hide assets and as a result costs of the
proceedings can escalate beyond what is reasonable.

2.6 Divorce law should ensure that violence to a party/children is minimised

Tougher divorce law may mean that a victim of violence cannot “escape” from a
marriage. The law must provide a mechanism for abused women to have an outlet when
they live in dangerous homes.

2.7 Divorce law should enable remarriage

This aim will prevent unmarried cohabitation. The living apart for 5 years fact of divorce
(available when the respondent does not consent to the divorce), which may be raised
on a petition when no other factor can be established, may encourage the petitioner to
cohabit and perhaps have children out of wedlock.

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2.8 Divorce law should deal with the emotional turmoil of the parties
This could be achieved during the divorce process or in complementary counselling and
support services. Dunn and Deater-Deckard (2001) found that only 5 per cent of children
they interviewed had been given a proper explanation of their parents’ divorce.

3. THE MATRIMONIAL CAUSES ACT 1973

3.1 The Special Procedure
Prior to 1973, each divorce application required a hearing with P presenting evidence in
open court including introducing witnesses if necessary. This was expensive, embarrassing
and stressful for both parties. It was also time consuming for judges. The special procedure
introduced in 1977 permits a streamlined process for undefended divorces where an
attachment to the petition stating the arrangements for any child of the marriage is
presented to court. A decree nisi can be pronounced in open court without the
attendance of the spouses. These days, very few divorces are defended and the vast
majority of those that are defended are unsuccessful. This has led to a great deal of
bitterness in a system that effectively permits divorce on demand.1

Following the decree nisi, P may seek a decree absolute after 6 weeks. If P fails to apply,
R may apply following a waiting period of 3 months from the decree nisi. The purpose of
the time period is to permit any appeal against the granting of the decree nisi. It also
permits the couple to have time for a final reflection before the final divorce is granted.

3.2 The One Year Time Bar on presenting a petition

Section 3(1) MCA 1973 – no petition for divorce can be presented within the first twelve
months of marriage. However, the petition can be based on facts that occurred within
that twelve months: s. 3(2) MCA.

3.3 The sole ground of divorce under the MCA 1973

Section 1(1) MCA states:
“A petition for divorce may be presented to the court by either party to a
marriage on the ground that the marriage has broken down irretrievably”.

This must be established by proving one of the five “facts” contained in s. 1(2) MCA 1973.
If one of the five facts cannot be proven, the court cannot pronounce a divorce even if
it is clear that the marriage has broken down irretrievably: Buffery v Buffery [1988].

3.4 The divorce “facts” under s. 1(2) MCA 1973

In 2013, of all decrees granted to one partner (rather than jointly to both), 65% were
granted to the wife. In over half (54%) of the cases where the divorce was granted to the
wife, the husband’s behaviour was the fact proven. Of the divorces granted to the
husband, the most common facts proven were the wife’s behaviour (38% of cases) and

1 Herring (2015) Family Law 7th edn Pearson page 141.

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2 years separation with consent (31% of cases). Very few decrees (less than 0.01%) were
granted jointly to the husband and wife.2

Fact 1
Section 1(2)(a) MCA 1973: Adultery
R has committed adultery and P finds it intolerable to live with R

Two facts must be proven

Adultery R must have committed adultery, P cannot petition on their own adultery
Definition: Adultery is voluntary sexual intercourse between a married person and a
person (whether married or not) of the opposite sex: Dennis v Dennis [1995]
Full and complete intercourse is not required, as long as the female sexual organ has
been penetrated.

If P alleges adultery and R denies it, it is up to P to prove the allegation.

And

Intolerability The test of intolerability is subjective: P must find it intolerable to live with R, it
is irrelevant that a reasonable person would not find it intolerable to live with R.

Cleary v Cleary [1974] the two factors are independent therefore as long as P finds it
intolerable to live with R, it does not matter if the adultery played any part in the
breakdown of the marriage. Thus, the subsection is to be read disjunctively.

Cleary made it clear that the approach taken in Roper v Roper [1973] that the two facts
were to be read conjunctively was not the correct interpretation of the subsection.
The Bar to Relief If the parties lived together for a period or period exceeding 6 months
after it became known that R committed adultery, P cannot rely on that act of adultery:
s. 2(1) MCA.

2
http://www.ons.gov.uk/ons/rel/vsob1/divorces-in-england-and-wales/2013/stb-divorces-in-england-and-wales--
2013.html#tab-Fact-proven-at-divorce

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 Fact 2
Section 1(2)(b) MCA 1973: Behaviour
R has behaved in such a way that P cannot reasonably be expected to live
with R

Two facts must be proven

- R must have behaved in a certain way
Behaviour -definition
“Positive acts of negative behaviour referable to the marriage”: Katz v Katz [1972]
Although a person in a permanent vegetative state may be considered to be behaviour:
Thurlow v Thurlow [1976]
Pheasant v Pheasant [1972] H complained that W was not spontaneously affectionate.
This was not the “behaviour” to which the section referred.

However, in:
Hadjimilitis (Tsavliris) v Tsavliris [2002]
H’s constant criticism, rudeness, lack of warmth, public humiliation combined to amount
to “behaviour”.

A woman’s behaviour with another man falling short of adultery may be behaviour:
Wachtel v Wachtel [1972]

AND
- It must be unreasonable for P to continue to live with R
This is determined objectively. This suggests that parties with similar defects of behaviour
could be expected to live together: Ash v Ash [1972].

The test enunciated in Livingstone-Stallard v Livingstone-Stallard [1974] has met with

judicial approval in subsequent cases: “Would any right thinking person come to the
conclusion that this husband has behaved in such a way that his wife cannot reasonably
be expected to live with him, taking into account the whole of the circumstances and
the characters and personalities of the parties?”

The recent case of Owens considered the correct interpretation of s. 1(2)(b)

Owens v Owens [2018]
The Supreme Court unanimously dismissed the appeal, with the result that Mrs O must
remain married to Mr O for the time being.

The Justices agreed that when applying s 1(2)(b) the correct inquiry is: (i) by reference to
the allegations of behaviour in the petition, to determine what the respondent did or did
not do; (ii) to assess the effect which the behaviour had upon this particular petitioner in
light of all the circumstances in which it occurred; and (iii) to make an evaluation as to

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whether, as a result of the respondent’s behaviour and in the light of its effect on the
petitioner, an expectation that the petitioner should continue to live with the respondent
would be unreasonable.

The lower courts gave the correct self-direction by understanding they were applying an
objective test, but with subjective elements. However, the Justices expressed concerns
about the summary despatch of a suit which was said to depend on an authoritarian
course of conduct, when the judge had scrutinised only a few individual incidents of Mr
Owens’ behaviour.

The majority invite Parliament to consider replacing a law which denies Mrs Owens a
divorce in the present circumstances.

Lady Hale and Lord Wilson had some misgivings about the judge’s judgment. This relates
to the fact that this case depended upon the cumulative effect of a great many small
incidents, yet the hearing before the judge was not set up or conducted in a way which
would enable the full flavour of such conduct to be properly evaluated. As a result, Lady
Hale considered that the proper disposal was to allow the appeal, and send the case
back to the first-instance court to be tried again. However, this was not a disposal which
Mrs Owens sought, and Lady Hale was therefore reluctantly persuaded that the appeal
should be dismissed.

Lord Mance did not share the concerns expressed by Lord Wilson and Lady Hale about
the judge’s judgment. Although the hearing of the defended divorce petition was listed
for a relatively short period, this was how the judge was invited to decide the matter. It
would be inappropriate for the Supreme Court to interfere at this stage.

The Bar to Relief Living together for a period or periods of 6 months gives the court a
discretion to dismiss the petition:

Bradley v Bradley [1973] W continue to live with H despite his vicious knife attack on one
of their children, However, the court did not dismiss her application as she had 7 children
and nowhere else to live.

Comment: A journalist has alleged that Facebook “sex chats” are responsible for 1 in 5
divorces.

Ruth Deech has commented that it is “very easy” to rely on this divorce fact, a criticism
that the Law Commission accepts “virtually any spouse can assemble a list of events
which, taken out of context, can be presented as unreasonable behaviour sufficient to
found a divorce petition.”

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 Fact 3
Section 1(2)(c)
R has deserted P for a continuous period of two immediately preceding
the presentation of the petition

This is the least significant of the divorce facts in terms of the number of petitions brought
each year. Adultery and behaviour provide a quicker divorce.
The elements of desertion are
The factum of desertion that is the couple must be living in two separate households, even
if under the same roof
And
The mental element – animus deserendi – the intention to bring cohabitation to an end.
If a party if incapable of forming that intention to desert due to their mental state, the
petition will fail: Perry v Perry [1964]
For supervening insanity, the law is now contained ins. 2(4) MCA
The desertion must be without just cause:
Quoraishi v Quoraishi [1985] the parties were married in Bangladesh under Islamic law. H
wished to take another W. his first W refused. He nevertheless took a 2nd W. H petitioned
for desertion and failed. The fact he married a 2nd W gave the 1st W just cause to desert.
The separation must be without consent of the other spouse

Constructive desertion if one party’s behaviour was so unbearable that the other spouse
left the home, the party remaining in the home may be guilty of constructive desertion.
Fact 4
Section 1(2)(d) MCA
The parties to the marriage have lived apart for a continuous period of 2
years and R consents to the petition

Two facts must be proved

The parties must have lived apart for two years even if they have lived under the same
roof, unless it can be said they were living in the same household:

Mauncer v Mauncer [1972] the spouses ate meals together and spoke to each other –
they were not “living apart”

Hollins v Hollins [1971] H and W lived in same house but did not speak, eat or sleep
together, this amounted to “living apart under the same roof”.

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And at least one of the parties must form the recognition that the marriage has ended,
until that time the parties are apart but are not “living apart”: Santos v Santos [1972]

And

R must consent to the petition being granted

Section 10(1) MCA is a discretionary bar allowing the court to rescind the decree nisi if P
misled R about any matter R took into account in deciding to give his consent.

Fact 5
Section 1(2)(e)
The parties have lived apart or at least 5 years

As with two years separation, the mental and physical separation must be proven
R need not consent to the decree being granted.
The court may withhold the decree if they believe the decree would cause “grave
financial or other hardship” to R AND it would be wrong in all the circumstances to
dissolve the marriage: s. 5 MCA 1973

As for financial hardship, e.g. the loss of a pension on divorce can be offset by making
other financial provisions: Parker v Parker [1972].

The most common “other hardship” (non-financial) is usually based on religious grounds
such as Rukat v Rukat [1975] but there is no reported case where this type of hardship has
been successfully argued

3.5 Defences to Petition

Section 5 MCA 1973 provides a defence to R who does not with the divorce to proceed.
This section is available where R can establish “grave financial or other hardship” to R
and it would be “wrong in all the circumstances” to dissolve the marriage. The operation
of s. 5 is demonstrated in the following cases:

K v K (Financial Provision) [1996]

The court adjourned the divorce petition until P (the husband) made financial
arrangements for his wife.
Archer v Archer [1999]
The wife had considerable assets and the court refused to find that she would suffer grave
financial hardship.

Section 10 MCA 1973 also permits the court, when the two years or five years separation
facts are raised, to refuse to make the decree absolute if it is satisfied that P should make
financial provision to R.

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4 PROBLEMS WITH THE CURRENT LAW3
4.1 It is confusing and misleading
Although irretrievable breakdown is said to be the sole ground of divorce, this in itself is
not sufficient to petition successfully. Professor Cretney notes “English divorce law is in a
state of confusion”.

4.2 It is discriminatory and unjust

The Law Commission has argued that the ground of two years’ separation is not readily
available to those who cannot afford to live elsewhere for the two years. Further, the fault
based grounds so not always reflect who is responsible for the marriage breakdown.

4.3 It distorts the parties’ bargaining positions

A non-consenting spouse can use the lack of consent to divorce as a weapon to create
an advantage in the bargaining process, especially where contact with children and
property redistribution is in issue.

4.4 It provokes unnecessary hostility and bitterness

The fault-based facts lead to hostility and bitterness and may destroy any hopes of
reconciliation or a civil post-divorce relationship.

4.5 It does nothing to save the marriage

The focus is on making allegations not on saving the marriage.

4.6 It can make things worse for children

Children often suffer more than their parents if their parents are in conflict.

5 THE FAILURE OF THE FAMILY LAW ACT 1996

5.1 The purpose of the FLA 1996
Section 1 of the Act set out general principles which were to guide judges and others,
such as lawyers etc., involved in the divorce process.

5.2 The timetable for divorce procedures under the FLA 1996
The timetable in the Act is complicated, but in summary, the procedures would have
been as follows:

3
Herring (2015) above, page 148.

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 0 months The spouse initiating the procedure must attend an “information
meeting”. The other spouse could also attend if they so wished.
Following the meeting, the spouse(s) should spend the next 3
months considering whether they really want a divorce.
The aims of this meeting were to:
• communicate information about the divorce process and its
consequences and introduce the concept of mediation
• to mark the seriousness of the step taken
• to encourage mediation from the early stage of the process.

3 months One or both parties may file a statement of marital breakdown.

This can only be made where the couple had been married for
at least one year.
3 months, 14 The period of reflection and consideration starts, During this time
days The couple should reflect on whether they wish to divorce,
The couple may consult a lawyer or mediator if they have not
yet done so.
12 months, 14 If there are no children and neither party has applied for an
days Extension of time, the parties can apply for the divorce order.
The court will grant this order as long as the parties have made
provisions for their children and finances
A party can apply for an order under s. 10 to prevent the divorce
order being granted if the order would cause hardship.
18 months, 14 Those unable to apply at the 12 months stage (e.g. those with
days children) may apply for a divorce order. Section 10 is available
at this stage to prevent the divorce on the ground of hardship.

The government’s decision to abandon implementation of the Act was largely due to
the failure of pilot studies set up to test the efficacy of the “information meetings”. The
meetings did not meet the desired aim of encouraging parties to attend mediation.
Attendees at the meetings reported that they were “too structured, impersonal and
routine.” Attendees felt they were not being treated as individuals but only given general
advice. Often the advice given was not even relevant to the parties’ needs.

People want individual meetings that are sensitive to their personal situation and the
stage they have reached in marriage breakdown. The meeting was not flexible enough
to deal with a large range of situations: Professor Walker [2001].

6 REFORMING DIVORCE LAW: THE FAMILY JUSTICE REVIEW

The Family Justice Review, undertaken by the Ministry of Justice (2012), proposed reform
of the divorce procedure and the Government has indicated an intention to adopt these
proposals, although probably not immediately. The review recommended that those
seeking divorce should go to an online “information hub” where they will access a

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“divorce portal” which will prompt them to consider financial and child welfare aspects
of divorce. An online form will be available and that form will be checked by a court
officer (not a judge). If the divorce is uncontested, the court officer will approve a decree
nisi. Six weeks later, the petitioner may seek a decree absolute. A judge would hear the
case if the respondent objected to the granting of the decree absolute.

The Review does not suggest changing the ground or facts of divorce but merely
changing the process. The internet will pay a larger part and lawyers a lesser part. It is
anticipated that 10,000 hours of judicial time will be saved.

Jonathan Herring4 is one academic who has expressed concern at this “divorce by
internet” proposal. Divorce often involves people dealing with chaotic emotions and
their feelings of guilt, anger, etc. that divorce often creates requires acknowledgement.
Herring feels that such an internet procedure disrespects the institution of marriage and
is undignified. Further, this procedure would fail to promote the state’s interest in
preserving marriages.

7 SUPPORTING THE RETURN TO FAULT-BASED DIVORCE LAW

Robert Rowthorn5 draws an analogy between the characteristics of marriage and those
of modern business partnerships. Marriage, like business partnerships, is an institution of
trust which enables two persons to have confidence to make long-term investments in
their relationship. Thus:

“The 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 penalizes those who break their
marital vows and helps to protect those who fulfil their obligations.”

Academic commentators have also questioned whether or not there is a psychological

need to apportion blame for marriage breakdown and whether society in general is
behind the direction of the reforms. As Shelley Day Sclater and Christine Piper6 argued:
“For many 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.”

According to Bainham7 we will not see no-fault divorce in England in the foreseeable
future. Fault certainly does play a role in other areas of family law, such as domestic
violence and the granting of financial provisions following divorce.

4 Herring [2015] Family Law 7th edn p. 156.

5 [1999] “Marriage and Trust: Some Lessons from Economics” Cambridge Journal of Economics
661.
6
[1999] “The Family Law Act 1996 in Context” in Undercurrents of Divorce (Ashgate)
7
[2003] “Men and Women Behaving Badly: is fault dead in English Family Law?” UOL Family Law
Study Pack

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Leaving the issue of religion aside, Bainham continues, the abolition of adultery as a basis
for divorce carries the implication that marital fidelity is no longer expected by the law.
The question of “family justice” arises and this involves the courts in making some attempt
to adjudicate between “right and wrong”.

8 DISSOLUTION OF CIVIL PARTNERSHIPS

Same-sex couples may end their union via dissolution which is governed by ss. 37-64 CPA
2004. The provisions for dissolution mirror the divorce provisions with the civil partner
presenting the petition being required to prove that the partnership has irretrievably
broken down. The main difference between the dissolution of a marriage and a civil
partnership is that there is no adultery fact in dissolution of a civil partnership.

9 EXAMINATION QUESTIONS
Question 2 Zone A 2020
‘It is now time to make no-fault divorce the default position in law.’

Discuss

Question 2 Zone B 2020

Discuss the extent to which current reform proposals to divorce law demonstrate an
ongoing commitment to supporting the institution of marriage.

Question 2 Zone B 2019

‘The impact of the case of Owens v Owens (2018) will be to ensure reform of an
unreasonable and outdated law.’

Discuss

Question 8 Zone B 2018

Sophie and Tim have been married for five years. Over the last few months, Sophie has
noticed that Tim has started going to bed much earlier than normal, without her. They
went to a friend’s birthday party and Tim left, by himself, at 9pm, after making snide
comments about Sophie’s outfit. Sophie says their friends found this strange, and she felt
embarrassed. Tim has also declined to go on their usual Friday night dates on a number
of occasions over the last couple of months, refusing to say more than that he is tired or
has had a difficult week at work. She is very hurt by Tim’s behaviour and does not
understand why he appears to be withdrawing from her.

Tim, meanwhile, is aware that Sophie has been having an affair with John, a colleague
from her work for the last year. Although he has known about it since the affair started,
he wishes now to end his marriage with Sophie.

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Explain whether and on what grounds Tim and Sophie can obtain a divorce.

Question 5 Zone B 2014

“There is no reason why marriage and civil partnership should not be capable of being
dissolved by consent of the parties.”

Discuss this statement.

Answer Plan
This essay invites a discussion of whether divorce/CP should be fault-based or consent
based.

Arguments in favour of fault-based divorce are:

Psychology – For some parties, their idea of justice may only be served if the law declares
who was at fault for the breakdown of the marriage. However, some argues that the
court room is not the place to argue this issue.
Justice – linked to the first point, it is the purpose of the law to uphold society’s values and
discourage conduct that damages society. If one spouse is to blame, e.g. through
adultery, then the law should declare this to be so. However, this does not take into
account that one spouse may be driven to commit adultery due to the lack of affection
of their spouse.
Marriage – No fault divorce undermines marriage as it allows a party to end the marriage
whenever he likes. However, it can be argued that if a couple stays together because
the law demands it, when their marriage is actually worth little, that does not support the
institution of marriage.

Arguments in favour of no-fault systems

“Empty shell” – If the marriage is an empty shell, there is no point forcing the couple to
stay together. No statute, no matter how carefully drafted can force two parties to love
each other. In Pheasant v Pheasant [1972] in which H complained that W was not
spontaneously affectionate. This was not the “behaviour” to which the law permitted a
divorce. Clearly the marriage was an “empty shell” but it could not be ended by divorce.
Children living in unhappy homes are actually worse off than children of divorce.
The “right” to divorce – It may be argued that to divorce is a human right. To “force”
someone to stay married against their wishes is an infringement of the right to marry and
to family life. However, the ECtHR has made it clear that the Convention does not include
a right to divorce: Johnston v Ireland [1986].
Bitterness – A fault-based system encourages bitterness by focusing the spouses’
attention on past unhappiness and making these a matter of public record.

The impossibility of allocating blame – the law cannot always determine who is to blame.
Adultery may be the symptom of an already broken marriage, not the cause of the
marital breakdown.

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