FAMILY LAW ACT

Family Law Act

Family Law Act

Introduction

During the 1980s, policy-makers finally began to really grasp the nettle of reforming the basis of modern English divorce law. The end result of the ensuing reform process was the enactment of the Family Law Act 1996. The Act represented an interesting development in the history of divorce law for several reasons. In one sense it was unique, in that it constituted the first government-sponsored reform of the law since 1857. In addition it also provided for two fundamental changes to divorce law - namely the removal of matrimonial 'fault' from the basic divorce process, and the encouragement of mediation rather than lawyers as the preferred method of resolving disputes (Day Sclater and Piper, 1999).

The Act has been described as introducing a 'revolutionary mechanism' for obtaining a divorce (Eekelaar et al, 2000). It is certainly true that since its emergence as a judicial procedure in 1857 (Wolfram, 1987), English divorce law has been characterized by its reliance on the concept of matrimonial fault.1 Having initially provided the sole basis for obtaining a divorce, the fault doctrine did witness some erosion of its centrality to the divorce process over the years. Nevertheless, in the early 21st century, the English divorce regime remains one that can be best described as partial no-fault. Section 1(1) of the Matrimonial Causes Act 1973 provides that the sole ground for obtaining a divorce is that a marriage has 'broken down irretrievably'. However, courts can only hold that such a breakdown has in fact taken place on proof of one of the five facts contained in section 1(2). These facts embrace both instances of 'fault' - namely adultery, that one party has behaved in such a way that the other cannot reasonably be expected to live with him or her, and desertion-and the 'no-fault' situations of two years separation where the parties agree on divorce, and five years simple separation in the absence of such an agreement.

The divorce process itself is commenced by one of the parties to the marriage filing a petition providing particulars of the fact or facts alleged. Although a duty is theoretically placed on the court 'to inquire, so far as it reasonably can' into those allegations [Matrimonial Causes Act 1973: section 1(3)], in practical terms the burden lies with the petitioner to establish one of the facts. In the rare event that the respondent wishes to defend the suit, then it is for him or her to show that the marriage has not broken down irretrievably (Lowe and Douglas, 1998). Establishing the requisite facts is a relatively simple task. Indeed, by virtue of the 'special procedure' that has applied to all undefended divorce petitions since 1977, it has largely become a matter of correctly filling out the requisite forms (Cretney, 2000a). Under this “special procedure”, instead of orally presenting petitions to a judge in the petitioner's presence, the various forms are scrutinized by a judge sitting in private. Provided the judge is satisfied that the conditions for ...