Grounds for divorce

The Law Commission's Family law: the ground for divorce' contains proposals, including a draft Bill, for the reform of the provisions of the Divorce Reform Act 1969 now contained in the Matrimonial Causes Act 1973. Though the government is to delay legislation, we may hope for a system at some future time in which divorce is initiated by a simple declaration by either spouse that the marriage has broken down, followed by an 11-month period during which issues involving children and money are resolved with conciliation available. Divorce would be granted a month after that -- later, if financial and children's matters are still outstanding -- and neither party would have to corrode -- the future of their children, or outrage the other and what remains of their relationship, by delivering a petition containing offensive and contentious allegations about past conduct.
That is the good news. The bad news lies partly in what the draft Bill omits and partly in cl 4 which it includes. This cl 4 harks back to the qualification on the right to divorce contained in s.5 of the 1973 Act. That qualification only applies to divorce based on five years' separation without consent. It was enacted as a sop to all those who believed that there is sense in the legal bond of marriage even when one spouse is resolute that it has ended, and to those who could not stomach divorce where there was neither consent nor a ground based on matrimonial offence.
The qualification was that it should dismiss the petition if the court was of the opinion that the dissolution of the marriage would result in grave financial or other hardship to the respondent and that it would in all the circumstances be wrong to dissolve the marriage (s.5(2) of the 1973 Act). The bar has rarely been invoked.
Along with most thinking family lawyers, the Law Commission has rejected the whole philosophy of conduct-related divorce. But the commission has also rejected the logic that a bar, whose only existence lay in the distinction between divorce at the instance of one spouse and divorce requiring consent of proof of matrimonial misconduct, should also go. Subject to the word 'grave' also qualifying 'other hardship', it is now proposing that that bar should be available in all divorce cases. Why?
Hardship
On financial hardship, the commission talks about loss of pension rights. Yet calculations including pension rights are commonplace in many present financial settlements and the capacity to accommodate them will be fortified, under the commission's proposals, by the court's power to delay divorce until all financial issues are resolved.
The real problem is that, if the clause survives, spouses will snatch at a whole host of other options. Take the case where the other partner might in the distant future have a substantial inheritance, for example. This has already been argued, unsuccessfully though not without approval of the principle, in Michael v Michael [1986] The Times, 26 May.
As to other grave hardships, the commission contemplates divorce which might result in severe stigma in the community where the respondent lives. It considers exclusion from religious or social life, and loss of prospects of remarriage in that community. We know what the commission has in mind and may sympathise with its sentiment. But in truth, if cl 4 is made law, it will become the last recourse of the bloody-minded. We do not need it, and it is to be hoped that we shall not have it.
Sharing property
The omission in the commission's proposals lies in its uncritical acceptance of the hoary old general and imprecise guidelines for financial decisions (set out in ss.25 and 25A of the 1973 Act) particularly given its proposals for conciliation and for a basically tight timetable for financial decision-making.
If we are to reduce the cost, delay, misery and uncertainty of divorce; if we are to avoid endless applications to extend the 11-month period of reflection; and if we are to give an effective bedrock for conciliation, we must have a precise and comprehensive basis for reallocating divorcing spouses' income and property. That is still more the case now that the white paper 'Children come first' has proposed that provision for children shall be calculated to specific mathematical formulae anyway.
Under the Family Law (Scotland) Act 1985, Scotland already has precise and rational principles for sharing property. We would do well to adopt them in England and Wales. But we should not stop there. It does not defy ingenuity to conceive of a comprehensive code which would also embrace maintenance. I shall not repeat here either the logic for it or how it could be done. I have previously set out both in detal in the discussion paper 'Maintenance and capital provision on divorce -- a need for precision?' published by the Law Society's family law committee in March 1987. With a precise basis for calculation, conciliators would have an authoritative starting point, and many spouses could agree who should have what anyway.
Tackling the problem
Thus far three areas have stigmatised our system: the grounds for divorce and the absence of a Family Court have been two of them; the absence of any code for sharing property and income has been the third. We can now hope to see the end of the first and have some hope for the second. Notwithstanding our constipated approach to the real problems of real families, should we not also tackle the third?