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Vardags Family Law Essay competition 2023/24 | Lamisa Chowdhury


Lamisa Chowdhury - London School of Economics and Political Science

Divorce/dissolution law should not be concerned with the autonomy of individuals. Rather, it should seek to promote cooperation (w/c 1479)

To put the aim of individual autonomy at the forefront of divorce law is to disregard the reality of a separation: involving two people. The dangers of divorce law being excessively preoccupied with autonomy will be explored in this essay through two ways.

Firstly, the historical basis for autonomy in this area is rooted in conflict, which manifests in modern-day law through fault-based requirements. Secondly, therefore, the carry-over of a fault basis facilitates antagonism and bitterness within the legal proceedings of divorce/dissolution. This encourages parties to take highly individualistic stances, which results in adverse outcomes of vulnerable people involved (such as children). The law should instead promote cooperation via a conciliatory approach, as it is in the states best interests to limit conflict between individuals by encouraging a peaceful separation. Although the Divorce, Dissolution, and Separation Act 2020 (DDSA) appears to be taking a step forward in this direction, it is unable to fully adopt a cooperative approach.

The historical basis of autonomy in divorce law is problematically rooted in conflict. Divorce law as an autonomous decision by the spouses themselves originates from the French Revolution. The autonomy to dissolve a marriage was viewed as an indispensable element of the freedom the revolution bestowed upon the French people. Though this development in divorce law seemed to be a radical development for free choice, autonomy was less so an aim of the law, and more used to mold political ideas at the time. In this sense, the basis of autonomy does not stem from neutral divorce law. Rather, it was used by states to regulate citizens through imposing an aspect of control. The case of the French Revolution being, a move towards contractarianism, which promoted individualism and autonomy over state intervention. To make progress on the political, contractarian standing, divorce became a political symbol, rather than simply one aspect of marriage and family law.

This promotion of individualism in divorce law is hinged on a conflict basis at the fundamental level. Through the reflection of French Revolution ideology, symbolism, and politics in divorce law, namely, the concept of freedom under the code civil, a fault-based approach to divorce is established. Having to be emancipated or free from a wrong doer (in a way that mirrors revolutionary ideals) serves to reinstate the political position of the nation. The contractarian stance, however, may not be an appropriate one to introduce into Family Law. Although autonomy is an essential aspect for an individual in deciding they no longer want to be in a partnership, it is important to remember that divorce law does not deal with a singular individual. The state should aim not to encourage an isolation of the people involved through singular and autonomous decisions, when that decision, involves both. The principles of the French Revolution (upon which modern divorce law is based) run contradictory to this sentiment, through a primary aim of autonomy which gives way to conflict.

These principles of conflict are retained in the fault basis of modern-day divorce law, which can be seen in the Matrimonial Causes Act 1973 (MCA). This only has negative effects on Family Law, as it adds an adversarial element to divorce proceedings. The MCA requires the applicant to state the irretrievable breakdown of the marriage, alongside proving a fact which proves the failure of one of the parties. This failure arises one-sidedly against the other party. This can be seen through wording used by the criterion: the petitioner finds it intolerable to live with/cannot reasonably be expected to live with the respondent. This fault-based approach automatically instils conflict within the system. A wrong doer, or fault must be identified, which adds unnecessary extra tension to an already sensitive process. Furthermore, it may add pressure to parties where there is not necessarily a wrong doer. A couple who otherwise would have separated amicably for reasons unrelated to conflict, must now decided which party is seeking freedom from the culprit.

The fault-based approach derived from the aim of autonomy statistically results in the adverse effects of vulnerable people involved. The need to prove one of a set of 5 facts under section 1 implicitly facilitated this due to the need for judicial inquiry. The 2017 summary report on Divorce Law found that scrutiny of the inquiry is placed on whether the fact alleged by the petitioner is true, adding to the total pre-reform costs of divorce proceedings estimated at £20 billion. This only increases the time spent on the adversarial litigious process, which could otherwise have been used to settle future arrangements and child welfare. Furthermore, Ruth Deech likens the requirement to prove one out of the 5 facts as a charade. By introducing conflict into the system where it does not necessarily need to be, the system only encouraged applicants in using collusive and artificial means to allege unreasonable behaviour, as a quick way out. This again seems to be a counterintuitive use of the states resources, which should focus on the safeguarding of children. Studies have quantified the statistical increase of poor educational attainment, employment, and psychological harm seen in the children of divorces. However, under the autonomy focus of fault-based law, the courts are more involved in securing the culprit in the divorce, over the overarching need to reach an arrangement for the benefit of society.

The problems of the fault-based element of divorce law led to the reform of the MCA in 2020. The Ministry of Justice report highlighted that the key need for change was based on two objectives. Firstly, they demonstrate a need to remove the legal requirements which do not serve societys interests and can lead to conflict. Secondly, the Ministry of Justice seemed implicitly to understand that this conflict-driven fault basis stemmed from its roots in divorce law being too focused on an aim to preserve autonomy. To address this, the reform recentres their approach on the law to aim towards cooperation, through the removal of the ability to allege fault and contest the divorce. By removing the conflict-driven elements,

David Gauke states it provides the couple (and courts) more space to focus on greater stability which will help them reach agreement about arrangements for the future. The reformed law (through an aim of cooperation) has a more practical approach in assisting both parties post-divorce. This is opposed to the previous autonomy basis, which was occupied more on finding a culprit for the divorce. The focus on cooperation can now be seen in two main ways. Firstly, under section 1(2), the law now provides an option for both applicants to provide the statement of irretrievable breakdown together. This joint statement portrays a symbol of mutuality, which exchanges an autonomous focus (on one-sided fault), for collaborative agreement. Secondly, this provides for the option of conversion later in the process: a party initially disagreeing with the divorce may change their opinion to match the applicants. This preserves the well-being of the individuals involved, which serves the practical purpose of parties being in a better position to discuss future arrangements.

However, although the government consultation hoped to remove the element of hostility and ongoing conflict as seen in the previous, fault-based law, this is contradicted through retaining the centrality of an irretrievable breakdown as justification for the divorce. Although there has been a move towards the aim of mutuality, autonomy remains under current law. The courts only need the statement of one person to be conclusive evidence that the marriage has broken down irretrievably. This implicitly promotes conflict in the sense that, a one-sided notion of irretrievable breakdown is undoubtedly tied to the fault of one or both parties. The poor outcomes of vulnerable groups arise in similar ways to the old law, running into the danger of conflict arising from autonomy. It promotes disagreements between the parties to quantify an irretrievable breakdown, which seems to unwork the notions of convergence and collaborative agreement discussed prior, counteracting the otherwise positive moves towards mutuality.

Where autonomy is involved as an aim in divorce law, a conflict-based fault approach is applied. The historical roots of this phenomenon can be seen in modern law, as recent as the 1973 MCA. The aspect of autonomy in this area of the law is not truly beneficial (and perhaps counterintuitive) to the social benefits of post-divorce arrangements and child welfare, which the state has more of a stake in. Autonomy is not an aim the law should be pursuing, due to the adverse effects which arise. The law should aim instead to centre the main goal of divorce/dissolution law around cooperation, due to the better outcomes it provides both for the state and parties involved. Although the current law loses much of the fault-based elements historically arising from individualism, it is not yet fully committed to removing the adversarial element of autonomy-focused divorce, in exchange for full-fledged cooperation.

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1 Government Consultation Paper on reform of the legal requirements to divorce (2019) p6

2 R. Phillips, Putting Asunder: A History of Divorce in Western Society (Cambridge University Press, 1988) p180.

3 Masha Antolskaaia, Convergence and divergence of divorce laws in Europe (Child and Family Law Quarterly, 2006) p312

4 J. Traer, Marriage and Family in the Eighteenth Century France (Cornell University Press, 1980) p129

5 Matrimonial Causes Act 1973, s 1(1)

6 Matrimonial Causes Act 1973, s 1(2)

7 Liz Trinder, Divorce law and Practice in England and Wales

8 Family Law Review group of the Centre for Social Justice (vol. 2 Breakdown Britain, 2006) p68

9 Ruth Deech, Divorce – A disaster? (Family Law Nov, 2009) p1048-1055

10 Marquardt. E, Between two worlds: the inner lives of children of divorce (NY 2005)

11 Reducing Family Conflict: Reform of the legal requirements for Divorce (Ministry of Justice, 2018)

12 David Gauke Reducing Family Conflict: Reform of the legal requirements for Divorce (Ministry of Justice Foreword 2018) p3

13 Jonathan Herring, Family Law 10th ed (Pearson, 2021) p156

14 Divorce, Dissolution, and Separation Act 2020, s1 (3)(a)


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