My observations are underpinned by numerous people and organisations who have investigated and reported the problems of the current divorce system. A selection of observations and warnings dating back to 1979 are set out below.
A Better Way Out Reviewed, published by the Law Society1982
This makes the lack of official interest in the reform of family law all the more depressing…..
9.We said in "A Better Way Out" [1979] that the present law on divorce was seriously defective in three ways.
….Second, the five facts, or sets of facts, laid down by section 1 of the Matrimonial Causes Act, 1973 as proving irretrievable breakdown of marriage include subjective factors which experience has shown to be in practice un-triable by the courts. …. This gap between public attitudes and the law leads to its being treated with disrespect and abused.
1981 – The Financial Consequences of Divorce, Law Com. No. 112
- … we believe that such reform should at least help to reduce any justification for the widespread sense of injustice manifest in the response to the Discussion Paper. Many of those who wrote to us clearly felt (sometimes many years after the divorce) considerable bitterness; and they often attributed their feelings to the unfairness of the financial orders which the court had made. Many of these commentators made strong pleas for a reform of what they regarded as an unfair and unjust law.
Family Law – The Ground for Divorce (Law Com. No. 192) 1990
2.11 Finally, and above all, the present law pretends that the court is conducting an inquiry into the facts of the matter, when in the vast majority of cases it can do no such thing.35…… Moreover, the system still allows, even encourages, the parties to lie, or at least to exaggerate, in order to get what they want.
The Lord Chancellor (X 2)
Lord Chancellor – Lord Hailsham
Matrimonial And Family Proceedings Bill – Hansard 21 November 1983 Volume 445
I said a moment ago that the reforms were urgent…..
I need not remind your Lordships of the nature of the reforms of 1969. By that statute, which I criticised at the time in another place, irretrievable breakdown was substituted as the one ground for dissolution, in place of the old grounds which were largely based on fault. It was done, at least in part, on the initiative of the Church of England in a booklet called Putting Asunder. Whether or not I was right to criticise the Bill does not now arise. But I recall that I said then that it was brought forward very largely on the advice of the Churches, and in particular the Church of England, and would greatly increase the number of divorces. It has, in fact, done so.
Lord Chancellor – Lord Mackay of Clashfern
Looking to the Future, Mediation and the ground for divorce. Presented to Parliament by the Lord Chancellor, 1995
1.3 The Government has received clear indications of dissatisfaction with the current system, and considerable desire for reform. These concur with the responses received by the Law Commission during its own consultation period in 1988.
2.12 There was a nearly unanimous View among consultees that the current divorce law does nothing to save saveable marriages.
2.13 The current system provides little incentive or opportunity for reflection as to whether the marriage has indeed broken down irretrievably, or whether with appropriate help, the couple might wish to attempt to save the marriage. Once the petition has been filed, and the respondent has acknowledged service without intention to defend, the proceedings can develop a momentum to the extent that, as pointed out earlier, parties may be divorced after a period of just a few months, having had few chances to stop and consider whether this is the best outcome for them and their children.
2.15 The Government believes that at least some divorce petitions, possibly many, represent a ’cry for help’, which may not reflect a seriously thought out decision to end the marriage.
Grounds for Divorce. Published by Clarendon Press – Oxford1988
This gulf between ‘law in action’ and ‘law on the books’ is one of the distinctive features of divorce in England. Freeman, in 1976, was one of those who identified the gap between theoretical ideas of judicial divorce and the largely administrative reality. He claimed that as a result of the gradual introduction of simplified divorce procedure through the 1970s, ‘we will have a text book account of the rules which will gradually lag further and further behind the law in action.. . . (Freeman, 1976, pp. 258-9).
Divorce (Financial Provision) Bill [HL] – (Second Reading 11th May 2018)
In my speeches on this Bill, most recently just over a year ago, I have set out the relevant uncertainty, unpredictability and inaccessibility of the law, largely judge-made, despite the existence of a statute of 40 years ago intended to clarify matters. But the rule of law requires that the law be accessible, intelligible, clear and predictable. Issues should be resolved by application of the law and not by discretion. Means must be provided for resolving disputes without prohibitive cost or undue delay. The procedures should be fair. The current law, based on Section 25 of the Matrimonial Causes Act and as embroidered by judges for over 40 years, fails all those tests.
Divorce (Financial Provision) Bill [HL] – (Second Reading 11th May 2018)
My Lords, I thank the noble Baroness, Lady Deech, for the time and energy that she has devoted to bringing this Bill before your Lordships’ House. As a practising divorce lawyer for nearly four decades, I want to register my total support for this legislation, which is long overdue, and I beseech the Government to do something about the existing sorry state of affairs. Practicing in this field, I see people entering this area of litigation become victims of a statute that is no longer fit for purpose and which leaves too much discretion in the hands of the judges who apply it.
Professor Liz Trinder and Mark Sefton
No Contest: Defended Divorce in England & Wales – 2018
The current law simply does not fit with how the family justice system works, or seeks to work, either in general, or in relation to divorce.
…In practice, defence of the marriage itself has been near impossible for many years, leaving aside the apparently unique circumstances of the Owens case.