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Vardags Family Law Essay competition 2023/24 | Jazmine Aissi-Agbangla

Jazmine Aissi-Agbangla - University of Leicester

Does the law adequately explain the English and Welsh divorce trend? By Jazmine Aissi-Agbangla

There are two ways to dissolve the matrimonial unit. The first is the death of one of the spouses, and the second and more controversial one is divorce. Divorce is the legal termination of a marriage; therefore, those two concepts cannot be detached from one another. Matrimony became one of the seven sacraments of Christianity, making marriage a core aspect of the religion. Throughout their history, England and Wales have been deeply entrenched in Christianity and, therefore rejected actions that would be deemed to be sinful. Divorce is considered to be under the religion as it would put an end to a union blessed by God. The wife and husbands willingness to stay within the union was not considered to be important, for most of English and Welsh history whether they were happy within the marriage was deemed to be irrelevant. As a result, the law tried to prevent and reduce the occurrence and number of divorces. The idea that marriage was based on the love and companionship of the couple was only popularised during the Victorian Era, however, unhappiness was still not deemed to be a worthy reason to defy the wishes of God. The social attitude towards marriage took a long time to evolve and has only recently shifted from a long-term commitment at all costs to a personal relationship where individual fulfilment is important according to sociologist Bren Neale.  This essay will present an analysis of the impact that the change in divorce laws has had on the number of divorces in England and Wales. Since the first commoner divorce in 1670, the number of divorces increased until the early 21st century when the numbers began to drop. This will be done by analysing that the expansion and increase of divorce grounds for men and women lead to the initial increase observed. Followed by acknowledging the role that the common has played by creating more protection and giving the divorcing parties more control over their assets. Finally, considering the major impact that society has had on the divorce trends, which could explain the decrease in divorces.

Legal statutes:

The idea that divorces in the English and Welsh jurisdiction are 19th century inventions is a misconception. In 1670, Lord John Roos divorced his wife, it was achieved through the passage of a private parliamentary act. This event was the start of modern-day divorces, it set the precedent that a man could obtain a divorce order against his wife, on grounds of adultery. It was an expensive and complicated legal process. The Matrimonial Act of 1857 was introduced as a way to codify the legal precedent that was established by Lord John Roos divorce, Parliament still wanted to protect the reverence accorded to the nuptial tie, the grounds for divorce were restricted to adultery and desertion. Section 27 of the act allowed the husband to divorce if he could prove his wifes adultery, on the other hand, for women to be granted divorces, they would need to prove that their husbands adultery was incestuous or that he had committed bigamy. The final ground was that one of the spouses had deserted the other for two years or more. It is clear that the act was not introduced as a legal reform to make divorce proceedings more accessible. The main development brought about by the act was the change in the divorce proceedings, the legal process in which a divorce could be obtained, not the reasons as to why a divorce would be granted. While Parliament did not want to expand the grounds for divorce, the Matrimonial Causes Act of 1878 introduced legal separation for women whose husbands had been convicted of aggravated assault, it allowed them to obtain a non-cohabitation order and possible financial support from their husbands. Parliament was essentially compromising, it allowed those women to remove themselves from their marital union without the marriage being terminated, meaning that Parliament was not going against the church and undermining one of the sacraments by expanding the grounds for divorce, as separation is not technically a divorce. This procedure was popular amongst the working class. In 1900, 9,553 of them were granted in magistrates courts and exceeded the number of actual divorces. It can be deduced that the popularity of this measure is due to the fact that the procedure was simpler, less expensive, and more accessible. Meaning that for many of those people who sought to terminate their marital union, divorce was not an option, therefore a legal separation was deemed to be a sensible alternative. Under Matrimonial Causes Act of 1937 the grounds for divorce were expanded to include cruelty, and unsoundness of mind, moreover, the conditions to petition were the same for either party. The expansion did not change the fact that Parliament wanted to dissuade people from seeking a divorce, the grounds were still limited, in order for the process to remain maintainable. Parliaments attitude reflected how the general public felt about marriage, that it was a sacred union blessed by God and therefore should be sacred and protected. Over the last century, the number of grounds have been increased however the Divorce, Dissolution and Separation Act of 2020 introduced no-fault divorces in England and Wales, meaning that the petition for divorce does not need to be under a certain ground, or for a certain reason, there is now no need to blame the other spouse in order to be granted a divorce. Since Lord John Roos divorce statutory provisions have evolved in a manner that has enabled an increased amount of people to be able to access divorce proceedings if they wish to petition to do so. Therefore, expanding the grounds for divorce, and then removing the need for them entirely, partly explains the increase in the number that we have seen over the last few centuries. However, in the last few years, the number of divorces has decreased, even with the introduction of no-fault divorces, implying that the legal statutes are the only factor needed to determine the divorce trends in England and Wales.

The law within society:

The removal of legal barriers for divorces, made them more accessible to everyone, meaning that those who wanted to get divorced were able to get it, this explains the initial increase in the number of divorces that were seen in England and Wales but not the current decrease that is happening even with the introduction of no-fault divorces. To fully explain the divorce patterns, the institution of marriage needs to be analysed through both legal changes but also societal changes, as they are inevitably intertwined in the effect they have on the general public. For a majority of the history of marriage, English and Welsh society had been entrenched in religion which meant that the institution of marriage was mostly immune to the effects of the liberal principles that came about as a result of the Enlightenment such as liberty and equality. For example, the fact that the gender roles between husband and wife remained the same shows that the growing societal equality did not extend to the home, the wife remained subservient to her dominant husband. This means that because of its connection with the church, the institution of marriage remained in place, therefore the evolution and expansion of divorce laws was something that people were actively fighting against, as they did not want to promote sinful lifestyles. The traditional gender roles were reflected in the Marital Causes Act of 1857 as the standards for women to petition for divorce were higher than those of men. Men were viewed as the family and more capable of making reasonable decisions and therefore it made sense for them to have fewer obstacles to get a divorce, as it was more likely to be reasonable. In 1956, the Royal Commission on Marriage and Divorce published a report in which they stated that the relacing of matrimonial laws created a very real risk that divorce would become widespread, and this would destroy the concept of life-long marriage and endanger children, the report was asking people to put aside ideas of personal happiness because the existence of marriage in society is more important. The report reflected the view that many people had at the time, there was a fear of divorce meaning that they didnt want it to become more accessible, and not wanting to be together was not deemed to be a worthy enough reason to defy a sacrament. It wasnt until 1969 under the Divorce Reform Act, that it was deemed to be reasonable enough, it was a time were religion had less influence on general society. Clearly, society is a guide to determine which direction the law will go in. The main reason that many legal barriers have been removed is as a result of changing societal ideals, which has allowed the increase in the number of divorces.

Changing societal attitudes towards the institution of marriage also explains the current decrease in divorces that is currently occurring. From 1966 to 2004 the number of divorces increased from 3.2 divorces per 1,000 marriages to 14.0 per 1,000 in 2004, but then decreased to 10.8 in 2011. In 2021, the divorce rate per 1,000 was 9.3 for men and 9.4 for women. The decrease in the number of divorces is most likely due as a result of the decrease in the number of marriages that happening. In 1966 (per 1000) 70.7 men and 54.6 women got married, the figure decreased in 2004 to 27.7 and 24.6 respectively. In 2011 the figure dropped to 22.0 and 19.8. In 2019 the number of male marriages continued to drop to 19.1 and female marriages dropped to 17.8. Fewer marriages mean fewer divorces. This trend reflects the changing attitudes towards marriage, fewer people view it as a sacred union between a husband, wife, and God.

Common law:

As already established the main factor that explains the current divorce patterns occurring in England and Wales is the shift that society has gone through since the first modern divorce in 1670, as the societal change has guided the direction that the law has gone and enabled it to remove the majority of the obstacles that were initially placed Parliament. This societal shift is also reflected in the recent change in the common law regarding divorces, it has attempted to reduce the risk of getting divorced and has allowed couples to have more power over the division of their assets. In recent years, prenuptial agreements have become more popular, they are agreements that set out the division of the parties assets in cases of divorce. This device allows them to have more control over the divorce proceedings, it can also shorten as important decisions have already been made within the prenuptial document meaning that the divorce will also be cheaper than if they had to battle it out in court. The Supreme Court case Radmacher v Granatino [2010] UKSC 42 set the precedent that the courts will uphold the contractual agreement unless it is deemed to be unfair to one of the parties. The fact that common has increased the power that the divorcing couple has over their divorce procedures shows that both in theory and in practice the current law values the input of the parties and what they want to do with their divorce. Moreover, knowing that they have the ability to have control over some of their post-divorce finances allows more people to take the risk of getting divorced, as they know that some of their assets are protected, and therefore they wont lose them in the divorce. It isnt solely money-earners that common law seeks to protect, the case White v White [2000] UKHL 54 established the concept of Yardstick Equality. The court held that there should be no bias in favour of the money- earner and against the homemaker. It recognised that homemakers were entitled to some of the matrimonial assets. This enabled many stay-at-home spouses to be able to leave the marriage without the fear of ending up in a dire situation, especially in cases where they hadnt worked for the entirety of the marriage. Both cases have enabled the parties to have more security post-marriage, which makes divorce less of a financial risk and explains why more people are willing to get divorced than they were before.

Conclusion

To conclude, the law by itself does not adequately explain the divorce trends that have been observed in England and Wales since Lord John Roos divorce in 1670. While it explains that making divorce legally easier has contributed to the initial increase in the numbers of divorces during the 19th and 20th centuries the current decrease that is happening, meaning that the law cannot adequately explain the trends without factoring in the role that social change has played. For example, the main reason that Parliament did not initially want to make divorce more accessible is because England and Wales were religious countries. Their religiousness created a fear that the increase in divorces would defy God and lead to the downfall of society. As both countries remained religious, the attitude towards divorce continued, which explains the slow incremental increase in the grounds for divorce. The increase however reflected the loss of influence that religion had on both societies. Recent common law has allowed for more transparency and control over the divorce proceedings for the parties, however, this increase in protection has not led to an increase in the number of divorces. This can only be explained through the changing societal attitudes towards, marriage – which therefore impacted the amount of divorce happening. Therefore, divorce law becoming more permissive does not always mean that the number of divorces will increase.

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BIBLIOGRAPHY

Books/Articles:

  • Cretney, Stephen, Family Law in the Twentieth Century: A History (Oxford University Press 2005)
  • Eekelaar, John, Family Law and Personal Life (2nd, Oxford University Press 2017)
  • Willekens, Harry, Is Contemporary Western Family Law Historically Unique (Sage Publishing 2003)

Cases:

  • Radmacher v Granatino [2010] UKSC 42
  • White v White [2000] UKHL 54

Web pages:

  • Unknown author, Marriage rates in the UK (The Guardian, 11th February 2010)
  • Unknown author, no-fault divorce (Cornel Law School)
  • Connor, Karen, Potted history of divorce in the UK (Forbes Solicitors, 28th March 2023)
  • Everitt, Lauren, Ten key moments in the history of marriage(BBC, 14th March 2012)
  • Fairbairn, Catherine, Pre-nuptial agreements (House of Commons Library, 16th October 2023)
  • Kennan, Claire, Till Death Do Us Part? Divorce In Medieval England (The National Archive, 6th April 2017)
  • McLaren, Elizabeth, Marriages in England and Wales (Provisional): 2011 (Office For National Statistics, 26th June 2013)
  • Pepper, Lisa, Case Law Divorce Settlement (Osbornes Law, 9th November 2021)
  • Sharfman, Amanda and Pamela Cobb, Marriages in England and Wales: 2020 (Office For National Statistics, 11th May 2023)
  • Amanda Sharfman and Pamela Cobb, Divorces in England and Wales: 2021 (Office For National Statistics, 2nd November 2022)
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