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Criticism of the Law under MCA 1973: Reforms on Family Law and Divorce
Criticism of the law under MCA 1973:
There has been strong criticism of the current law over the decades, describing an archaic system based on fault. Despite its appearance as non-fault biased, the evidence to support an irretrievable breakdown of marriage suggests otherwise. In 2019 Rowling notes that there is no evidence that fault acts as a buffer’ to slow the divorce process down[footnoteRef:1]. Whereas Crouse points out that the cooling-off period required serves as a solution to protect the children from divorce[footnoteRef:2]. Although it does offer time for parties to adequately make arrangements. Opinions of critics on the substance the MCA differs although all call for a need to reform or amend the current law on divorce. The Law Commission concluded in 1966 that the first objective of the law should be not to undermine the stability of marriage but should also be to enable the law to maximise fairness[footnoteRef:3] ultimately concluding that the need for reform was paramount. Despite this, they foresaw that until a major decision on the point of law has been reached, any change would be premature[footnoteRef:4]. The government consulted on proposals for divorce reform that became part of the Family Law Act 1996. Its subsequent white paper, Looking to the Future[footnoteRef:5], set out concerns that are reflected by the present government is looking to reform. The Lord Chancellor at the time, Lord Mackey, noted that there was considerable discontent with the current system [footnoteRef:6]. Furthermore, the law commission published a paper in 1988[footnoteRef:7], criticising the law for being misleading and confusing and that the changes attempted had not been realised [footnoteRef:8] falling short of where it should be. [1: Nicola Rowling, Family Property: the end is nigh: the governments pledge to reform divorce laws, P.C.B. 2019, 4, 122-127, pg.122] [2: J. S. Crouse, No-Fault Divorce hits children hardest (2013)] [3: Law Commission, (1966) Reform of the grounds of Divorce: The field of choice report, (Law Com No006, Cm 3123) pg. 10 para. 15] [4: Law Commission, (1966) Reform of the grounds of Divorce: The field of choice report, (Law Com No006, Cm 3123) pg. 10 para. 56] [5: L. Trinder, D. Braybrook, C. Bryson, L. Coleman, C. Houlston and M. Sefton, Finding Fault?: Divorce Law and Practice in England and Wales (London: Nuffield Foundation, 2017)] [6: Lord Chancellors Department, Looking to the Future: Mediation and the Ground for Divorce, Command Paper Cm 2799 (London: HMSO, 1995), Pg.6] [7: Law Commission, Facing the Future: A Discussion Paper on the Ground for Divorce, Law Com. No.170, Command paper HC 479 (London: HMSO, 1988),] [8: Law Commission, Facing the Future: A Discussion Paper on the Ground for Divorce, Law Com. No.170, Command paper HC 479 (London: HMSO, 1988), 20]
Family law places great importance on childrens welfare. For instance, The Children Act 1989 sets out that a childs welfare should be the courts principal concern when determining any relevant question about the childs upbringing[footnoteRef:9]. Trinder has argued that the gap between the theory and the law in practice has offended Lord Binghams[footnoteRef:10] first principle of the rule of law which must be intelligible, clear and predictable [footnoteRef:11]. This could be seen in the often-vague decisions of the court in common law that get overruled by a similarly multifaceted decision. The creation of unnecessary conflict forces any couples to blame each other when there is no real need[footnoteRef:12], adding to the courts difficulty in making clear decisions benefiting all parties. Domestic abuse representatives in the 2019 response document to the 2018 consultation by the government, note the catharsis of finding the blame on the abusive party, but there was no actual constructive benefit for the victim[footnoteRef:13]. The prolonged exposure to the abuser furthers the harm already made and postpones any recovery. The process highlights the personal reasons behind the divorce which Trinder additionally believes should be kept private[footnoteRef:14]. Producing a long list of transgressions raises privacy issues potentially breaching Article 8 ECHR[footnoteRef:15] of the respondent and any children, the practice of which is ill-advised in court. There may be better avenues that end in the same result that have reduced anger and disappointment in the process. The divorce procedure places unnecessary hardship of the couple. Those that cannot afford to live separately have to live on the same property but refuse to speak to each other and eat together to ensure they meet the requirements indicated in Hollens v Hollens[footnoteRef:16]. Where the couple failed to speak, eat or sleep together whilst living within the same property, thus the court could not award a divorce on this basis. Criticisms arose largely illustrating the law as confusing and misleading; as the law tells spouses that the only ground for divorce is irretrievable breakdown seeming not to involve fault. Which contradicts the truth that one of the five facts must be established and three of them do involve fault. The only reconciliation provision in the MCA is s.6(1), requires a solicitor acting on the behalf of the petitioner to certify whether reconciliation has been discussed with the client[footnoteRef:17], thus having no real impact on the petitioner. The Law Commission drew attention to the defects of the current law declaring the separate facts, even with clear requirements, [footnoteRef:18] are subject to manipulation[footnoteRef:19]. The finding carried out by YouGov in 2015[footnoteRef:20] for resolution is mirrored by the findings in Finding Fault?[footnoteRef:21] illustrating that individuals petitioning for divorce used the fault biased facts as it was the easiest and often quickest option[footnoteRef:22]. [9: s1(1) The Children Act 1989] [10: Lord Bingham, Rule of Law [2007] 66 C.L.J. 67, 69-70] [11: Liz Tinder, Divorce Reform in England and wales: the human rights perspective. E.H.R.I.R. 2018, 6,557-559, ] [12: Nicola Rowling, Family Property: the end is nigh: the govs pledge to reform divorce laws, P.C.B. 2019, 4, 122-127 pg.122] [13: Ministry of Justice, Reducing Family Conflict: Government Response to the consultation on reform of the legal requirements for divorce (Command Paper, CP 58, 2019) pg.42] [14: Liz Tinder, Divorce Reform in England and wales: the human rights perspective. E.H.R.I.R. 2018, 6, 557-559] [15: Article 8 European Convention of Human Rights (1950)] [16: Hollens v Hollens [1971] 115 SJ 237] [17: S.6(1) MCA 1973] [18: Law Commission, Facing the Future: A Discussion Paper on the Ground for Divorce, Law Com. No.170, Command paper HC 479 (London: HMSO, 1988), pg. 35] [19: Which the government mentions in the response paper, Ministry of Justice, Reducing Family Conflict: Government Response to the consultation on reform of the legal requirements for divorce (Command Paper, CP 58, 2019)] [20: LexisNexis, ‘Resolution urges MPs ‘to get behind’ no-fault divorce’ (Family Law, 4 December 2015) accessed 5 January 2020] [21: Liz Trinder, D. Braybrook, C. Bryson, L. Coleman, C. Houlston and M. Sefton, Finding Fault?: Divorce Law and Practice in England and Wales (London: Nuffield Foundation, 2017) ] [22: Liz Trinder, D. Braybrook, C. Bryson, L. Coleman, C. Houlston and M. Sefton, Finding Fault?: Divorce Law and Practice in England and Wales (London: Nuffield Foundation, 2017) pg.39]
At the time the Law Commission criticised divorce law for being discriminatory and unjust. The ability to contest divorce is rarely used with only 2%[footnoteRef:23] giving notice that they intend to contest. In the Court of Appeal judgement form Owens v Owens[footnoteRef:24], Sir James Munby observed that the number of contested petitions that proceed to court was minute[footnoteRef:25]. Further research conducted by Trinder in No Contest[footnoteRef:26] observed most defended cases that reach court are settled, rather than decided by a judge due to the high cost, extended time frame and ultimately burdensome responsibility for the courts. The Governments response is that they want to introduce a minimum timeframe for the couple for the process of divorce[footnoteRef:27], attempting to ensuring that the decision remains fair and considerate. [23: Ministry of Justice, Reducing Family Conflict: Reform of the legal requirements for divorce. (2018) pg.20] [24: Owens v Owens [2017] EWCA Civ 182] [25: Owens v Owens [2017] EWCA Civ 182, para. 98] [26: L. Trinder and M. Sefton, No Contest: Defending Divorce in England and Wales (London: Nuffield Foundation, 2018), pg. 5] [27: Ministry of Justice, Reducing Family Conflict: Government Response to the consultation on reform of the legal requirements for divorce (Command Paper, CP 58, 2019) pg. 25]
An attempt at reform:
It must be noted that the government attempted to reform divorce law with the Family Law Act [FLA] 1996, aiming to reform the MCA 1973. The attempt was overly ambitious and too complex[footnoteRef:28] making it difficult to enact. Despite being subsequently repealed in 2001, the aim of reducing family conflict in the act was, and are, still supported by the government. A. More notes that the governments campaign for reform has not abated [footnoteRef:29], shown clearly when the government attempted the No-Fault Divorce Bill in 2015 and again in 2019 with the Divorce, Dissolution and Separation Bill 2017-2019 which were both unsuccessful. The Act would have retained the sole ground for divorce and abolished the five facts of breakdown, replacing them with complex steps[footnoteRef:30] before a divorce could be granted. Due to the findings of the various pilot testings the act was eventually repealed with the MCA remaining the current law. It was originally thought that the reforms made by the FLA were ground-breaking, however, the criticism which relates to the fault elements says otherwise. [28: Ministry of Justice, Reducing Family Conflict: Government Response to the consultation on reform of the legal requirements for divorce (Command Paper, CP 58, 2019) pg. 17] [29: A. More, Family property: reforming family law what does 2019 have in store? P.C.B. 2019, 2, 68-71. Pg. 68] [30: ss.9, 12(2) Family Law Act 1996 ]
Recent Reform Proposal On Divorce:
Over the years there have been many proposals demanding a second reformation on the law of divorce. The current proposal by the government is an altered version of the law under MCA 1973. There is a belief that when the UK leaves the EU it will undoubtedly play a huge part in changing international legal landscapes[footnoteRef:31]. Subsequently, the EU will have no say in divorce proceedings besides the preestablished EU law eventually becoming national law with the European Union (Withdrawal) Act 2018[footnoteRef:32]. After jurisdiction will be governed by the Hauge Convention[footnoteRef:33] and any treaties signed post-Brexit. In Miller Smith v Miller Smith[footnoteRef:34] Wilson LJ commented that there is an urgent demand for reform to abolish the five facts. Additionally, the supreme court ruling in Owens v Owens[footnoteRef:35] seems to have increased and kickstarted the debate on reform once again, adding pressure on the government to do so. Owens v Owens[footnoteRef:36] exposed the unfairness of individuals who find themselves in loveless marriages highlighting the high threshold that the petitioner needs to be held. As well as Steinfeld and Keidan[footnoteRef:37] Supreme Court decisions realising the current discrimination and the requirement that the current law needs to adapt. The aim of the newest reform proposal is reducing family conflict. The government plans to retain irretrievable breakdown as the sole ground for obtaining a divorce in the planned reform of divorce law[footnoteRef:38]. If the petition is lacking specific evidence, it can be a subjective threshold showing the government retains a strong stance on the opinion of marriage. Demonstrating that divorce should be hard to obtain and not taken casually and not used for inconsequential reasons[footnoteRef:39] or relationship issues. [31: Andrew More, Family property: reforming family law what does 2019 have in store? P.C.B. 2019, 2, 68-71, pg.68] [32: Andrew More, Family property: reforming family law what does 2019 have in store? P.C.B. 2019, 2, 68-71, pg.70] [33: International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18th October 1907, available at https://www.refworld.org/publisher,HAGUE,,,3ddca4e14,0.html [accessed 07/01/2020]] [34: Miller Smith v Miller Smith [2009] EWHC 3623] [35: Owens v Owens [2017] EWCA Civ 182] [36: Owens v Owens [2017] EWCA Civ 182] [37: R (Steinfeld and Keidan) v Secretary of State for the International development (institution for the Home Secretary and Education Secretary) [2018] UKSC 32; [2018] 3 WLR 514] [38: Ministry of Justice, Reducing Family Conflict: Government Response to the consultation on reform of the legal requirements for divorce (Command Paper, CP 58, 2019) pg.29] [39: Ministry of Justice, Reducing Family Conflict: Government Response to the consultation on reform of the legal requirements for divorce (Command Paper, CP 58, 2019) pg. 24]
The major change in the reform would be repealing s.1(2) and replacing it with a notice to the court of an irretrievable breakdown of marriage as evidence. There is concern that the introduction of a notice as evidence would make the divorce process less formal. Rowling notes replacing the facts, would arguably reduce conflict allowing the couple to bring a legal end to their marriage through a more defined process[footnoteRef:40]. Trinder adds that from a human rights perspective the proposed changes are welcome[footnoteRef:41]. They allow for adequate privacy protection of all parties involved. An argument proposed by Relate[footnoteRef:42] reasons that removing the facts as evidence would be hugely beneficial to the wellbeing of the victims involved in domestic or controlling cases[footnoteRef:43]. The organisation Cafcass agrees with the opinion, adding that it would further protect children. Maintaining the same sole ground of divorce and removing the fault biased evidence allows the underlying structure of the current law to remain. As a consequence of removing the five facts, certain supplementary provisions would be repealed[footnoteRef:44]. For instance, currently, the same evidence requirements of divorce are needed for judicial separation, given protection under s.4[footnoteRef:45]. This route of separation is preferred by those of the religious beliefs objecting to divorce. The proposed removal of the five facts would also remove it from judicial separation, supplementing the evidence with a similar notice to the court. There was a major response to support the removal of the provision[footnoteRef:46], though a late surge of Christian biased responses changed the consultations favour. Nevertheless, the government is firm in their belief that it is necessary to remove the provision. There are two immediate benefits to replacing the provision, firstly the need to publicise the minitours of the couples lifes would not be needed, keeping in line with the parties privacy rights under ECHR. Secondly, the petitioner would feel more confident relying on the notice and not on the respondents fault biased conduct of adultery or behaviour[footnoteRef:47]. [40: Nicola Rowling, Family Property: the end is nigh: the govs pledge to reform divorce laws, P.C.B. 2019, 4, 122-127, pg123] [41: Liz Trinder, Divorce Reform in England and wales: the human rights perspective. E.H.R.I.R. 2018, 6,557-559. Pg. 557] [42: Ministry of Justice, Reducing Family Conflict: Government Response to the consultation on reform of the legal requirements for divorce (Command Paper, CP 58, 2019) pg. 20] [43: Hadjilitis (Tsavliris) v Tsavliris [2003] 1 FLR 81] [44: ss.2, 5, 10, 20 MCA 1973] [45: s.4 MCA 1973 ] [46: Ministry of Justice, Reducing Family Conflict: Government Response to the consultation on reform of the legal requirements for divorce (Command Paper, CP 58, 2019) Pg.17 ] [47: Nicola Rowling, Family Property: the end is nigh: the governments pledge to reform divorce laws, P.C.B. 2019, 4, 122-127]
Divorce is a two-stage process, the granting of the provisional decree nisi and the award of the decree absolute[footnoteRef:48]. However, between the two decrees, there needs to be a 6-week interim[footnoteRef:49] and is the only current structured timeline. The government wants to introduce a minimum timeframe to the process of divorce. Various countries have approached the timeframe of the divorce procedure differently attempting to balance the needs of the public. The governments compromise recached six-months allowing time for the emotional and practical needs of the parties, similar to Spain and Colorado. Whereas Australia and Germany take the approach of a minimum of one-year separation period[footnoteRef:50]. Rowling believes the minimum timeframe would allow for clarity and consistency for the parties[footnoteRef:51]. However, she later notes that for the timeframe to be meaningful, the respondents need to be served swiftly [footnoteRef:52], there arises the issue of an unresponsive or uncooperative respondent exemplified in Santos v Santos[footnoteRef:53], which the government will need to address in any reform. Furthermore, the quickened timeframe could make the parties to divorce make decisions or changes too quickly and not fully think the consequences though. Nonetheless, some timeframe constraints are needed for a clear structure for all involved. [48: s10 MCA 1973 Gives the power to rescind the Decree nisi when the applicant gives any reason about any matter that influenced the respondents consent to the divorce. ] [49: s1(5) MCA 1973 ] [50: Jens Scherpe and Liz Trinder, Reforming the Ground for Divorce: Experiences from Other Jurisdictions (London: Nuffield Foundation, 2019).] [51: Nicola Rowling, Family Property: the end is nigh: the govs pledge to reform divorce laws, P.C.B. 2019, 4, 122-127, pg12] [52: Nicola Rowling, Family Property: the end is nigh: the govs pledge to reform divorce laws, P.C.B. 2019, 4, 122-127, pg125] [53: Santos v Santos [1972] EWCA Civ 9; [1972] 2 ALL ER 246]
Conclusion
To conclude, there is a need for clarification and further structuring of the divorce process. The MCA at present is unsatisfactory shown by the abundance of criticism which centres around needed reform. Blame specifically is the issue, relying heavily on the confusion over the need to find fault in a non-fault provision. The call for repealing fault biased evidence to substantiate a divorce claim is gaining support, although the same support is critical of the provision to replace it. There is a clear need for a serious attempt at reforming the law taking into account the common law influences. The easiest route being the amendment of the current divorce law system. The 2019 proposal reform would inevitably lead to an increase in divorces applications, maybe leading to a backlog of cases in the courts due to fewer restrictions on the evidence of the application.
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