Lady prominence[1] on the preserving the marriage and encouraging

Lady Hale has repeatedly
called for divorce on the grounds of mutual separation. With attention to the
fact there is currently no logical reason, as to why two consenting and capacitated
adults, cannot legally come to the decision to separate. Judges have outlined
this proposal many times, suggesting that if the divorce is not contested by
the other party, a judge should not be required to hear the proceedings of the case. Thus, marriage should be handled
as an administrative matter by a registrar, who should be able to dissolve the
marriage, in the same way that it was formed.

The current law makes a
decree absolute excruciatingly difficult to obtain, which essentially forces
couples to stay married for several years against their will, which may bring
more misery upon the spouses and the children. Additionally, children will
often have mixed feeling about the separation of their parents, as well as
difficulty processing the new changes. It is for this reason that society
requires a friendlier system which will grant husbands and wives quick legal
separation to preserve vestiges of love. ‘adultery’ under section 1(2)(a) or ‘unreasonable behaviour’ under
section 1(2)(b). A ‘fault based’ system requires blame which, shreds any last
trace of love and respect that would have otherwise remained in the family,
often creating a hostile environment for co-parents. Worse still, the difficulty
of the system is contrary to public policy and the dominant moral code. The
Committee on Procedure in Matrimonial Causes 1947 placed a great prominence1 on
the preserving the marriage and encouraging reconciliation in cases where there
was even a slight chance of success. However, the nature of the external moral
code contained within the law has been associated with a hidden policy agenda
to recapture pre-war society. Hence, feminist writers have perceived the
incorporation of family law into a wider correctional or moral code in post-war
Britain.The Government’s failure to
implement new law in accordance with modern times has caused harm and intrusion
in the lives of citizens such as in Owens
v Owens 2017. After 37 years of marriage, Mrs Owens petitioned for a
divorce relying on unreasonable behaviour. Mr Owens, unconventionally sought to
defend the divorce, denying all 27 allegations which his wife made against him.
It was determined by Judge Toulson that her complaints were “minor altercations of a kind to be expected in a marriage”2
thus she had been ‘more sensitive
than most wives’ when she claimed that the marriage had broken down3.
Upon appealing to the court of appeal, this decision was upheld, confirming
that Mrs Owens had failed to prove ‘unreasonable behaviour’ on Mr Owens part.
In effect, this decision is notable because it ultimately implies that unless
Mr Owens changes either his position, or that of the law, Mrs Owens  has no choice but to wait until 2020 before
she can receive a divorce. Whereby her only grounds for divorce, will be petitioned
under section 1(2)(e). This, of course, is pending, depending on what the
Supreme Court will conclude. Nevertheless,
it follows that when Mrs Owens lost her appeal, she lost the autonomy to find
happiness, which raises the question of whether the law should be in control of
our romantic happiness? Are the government exceeding or abusing their powers by
intervening in the lives of citizens, by confining them to a loveless marriage?
– At present, it stands that Mrs Owens is left to feel unhappy, isolated and lonely,
and entirely at the disposal of adversarial divorce laws that have quite
clearly failed to catch up with contemporary reality. The result of Owens v Owens as of now, suggests that
the only way to get a speedily divorce, is to prove fault. So, it should be of
no surprise when couples unfairly disparage each other, sometimes falsely, to
support the profoundly wrong conception that fault must be established between
one of them for the dissolution of their marriage. On the other hand, the controversial
decision made in favour of Mr Owens reasserts the limits of judges when
applying legislation. Indeed, the Law Commission has acknowledged that there is
very little direction given to judges, even on matters concerning the division
of financial assets or property. This is perhaps why it is argued that judges
must not assume the role Parliament and ignore clear words of statue on the
basis that the consequences may result in injustice for one party. Thus, it is argued
that the judges are not in the position to make adverse changes to the law when
deciding the Mrs Owens (Supreme Court) appeal.  NO-FAULT
BASED SYSTEM Despite
this, the introduction of a no-fault based system is crucial for the state to
keep in accordance with the attitudes of society today. Several academics
applaud the laws of divorce in Scotland and Canada, whereby although fault
grounds for divorce are accessible, spouses can petition for dissolution of
marriage without the requirement of proving fault on the part of the
respondent. From these jurisdictions, we can draw that the simplicity of the
system aims to allow capacitated individuals to make their own life decision
and reduce the negative impact on the children during the family feud. In today’s
reality, “no fault, uncontested divorce”4 is the least complicated and inexpensive
way for departing couples to obtain a Decree Absolute. Ultimately, no-fault
divorce in effect means that the conduct of the spouses, whether during the
marriage or after the breakdown, is irrelevant to the divorce procedure, thus,
has no effect on custody and financial division of property and assets. I am of
the view that when relationships end, often neither5
party is at fault. In spite of love, tolerance and history, it is not uncommon6
when a relationship ceases to work. Hence, this peaceful alternative, provides
couples with reassurance that if the relationship is unsuccessful, they will
not be involuntarily ‘locked in’
their marriage.Moreover,
at present, women share the same rights as men; they are no longer treated as
the property of their husband and subsequently have higher expectations with
less tolerance. Various other factors such as financial freedom, access to
education, advances in technology and progress toward gender equality have
reshaped society’s attitude towards the traditional lifelong7
commitment of marriage. This change must be responded to accordingly by the
Government. After all, if both parties are of age and have the capacity to
consent as autonomous and rational beings, there is no plausible argument for
why they should not make their own decisions. Should the government fail to act
soon in the nearby future, this issue will be exacerbated, and the marriage
rate will continue to decline. Hence, the longer the Government take to reform,
the more likely that couples will be deterred from marriage and the numbers of
cohabitants will increase.   RADICAL REFORM | THE FAMILY LAW ACT 2018The radical reform of
divorce was due to come into force under the Family Law Act 1996, but this was
never implemented. It was argued that the Family Law Bill had failed to satisfy
its original objectives and it was heavily criticised. The initial aim of the
reforms were mainly concentrated on saving marriages; offering referrals for
marriage counselling, and opportunities to consider reconciliation, would be
facilitated; thus adequate time would be given to confirm whether the marriage
had was genuinely irrevocable. On the contrary, the research revealed that very
few petitioners took part in marriage counselling and the few which did attend,
did not attend with the view to saving their marriage. The decision not to
implement the family law bill was greeted with fierce debate and the recent
decision in Owens v Owens has
increased the pressure on Parliament to reform. Indeed, even the senior
members of the judiciary and the President of the Family Law Division, have
publicly acknowledged the need for change. Sir James agreed with his comments
and petitioned that reform would add “a bit
of intellectual honesty to the situation”. Therefore, the new content on
divorce law should have three main objectives; firstly, to introduce a no-fault
bill, which removes the requirement of blame; allowing married persons to separate
without bitterness. Secondly, to prioritise the needs of any children and provide
protection for vulnerable adults who may require support after the separation. Thirdly, only in cases where both adults are willing
to consider the possibility of reconciliation, the law should provide
marriage guidance or counselling support.

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