Academic Dive

Academic Dive: A Pragmatic Separation

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

A PDF version of this paper with full citations is available here: A Pragmatic Separation

The following article is based off one of our student’s dissertation papers and will discuss our British counterpart’s method of divorcing. This paper’s analysis of the British system can highlight that in Canadian family law, our system for divorcing can be seen as more pragmatic due to the lack of emphasis the substantive law places on evidencing Fault. Despite the process of divorcing being full of emotional complexities, individual’s that choose to proceed with their separation in a pragmatic way can have a profound effect on their experience and future familial prosperity. We recommend viewing this paper in pdf version of as it contains charts, diagrams, and citations. A pdf version is available here: A Pragmatic Separation

The purpose of this paper is to explore the current state of the law on divorce in England and Wales and its shift towards a no-fault based system through the interpretive skeleton of two conflicting moralities. The interaction between this area of law and morality is important to determine because family law is sui generis for its socio-legal roots.  “Morality cannot be legislated, but behaviour can be regulated. It may be true that the law cannot change the heart, but it can restrain the heartless”. These words spoken by Martin Luther King in the midst of the civil rights era and his push for non-violent conflict resolution opposed to one of harm  highlights the relationship between moral discourses underpinning the law in theory, its collateral effects in practice, and the duty that the law has to accurately reflect modernity.

On a micro level, the theoretical objectives of the law have shown disparity with its use in practice. Understanding this disparity can in turn provide insight on a macro level to the interaction between overarching objectives of wider family law and modern societal values. These overarching objectives on a macro level relate to harm-minimization and the promotion of long-term family relationships as expressly stated by the Resolution Code of Practice  and the Law Society Protocol  on Family Law.  This paper seeks to argue that the moral discourse underpinning the current law on divorce in theory does not reflect the discourse used in practice and in the overarching macro level objectives of wider family policy and modern social values, thus eliciting an out of date law on divorce.  This paper will also contend that recent proposals for reform acknowledge this disconnection and evidence a shift towards a pragmatic moral discourse that reflects macro level objectives. It will be concluded that although the law’s shift to pragmatism is justified, there are further areas for reform that are of valuable consideration.

Chapter 1: The Law in Theory and in Practice

Owens v. Owens

The law on divorce in England and Wales has been contested in both the judiciary and academia for decades.  Consensus following the decision in Owens v. Owens in both the legal community and broader public domain has reflected the predilection for reform. Not only have the Supreme Court Justices called for reform in obiter of Owens, but extra-judicial calls have been affirmed as well across the judiciary.  Despite numerous calls for reform,  the  law has remained consistent in theory since the enactment of the Divorce Reform Act (DRA) 1969 and subsequent consolidation to the Matrimonial Causes Act (MCA) 1973. The current hybrid-based system requires the petitioner to prove one ground for divorce, which is that the marriage has ‘irretrievably broken down’.  The petitioner has to satisfy the court that this has occurred by proving one of the five ‘facts’.

The recent case of Owens has sparked a resurgence of the debate surrounding the use of Fault in the current law. In Owens, Mrs. Owens had petitioned for divorce from Mr. Owens in 2015 on the ground that the marriage had irretrievably broken down based on the fact of ‘behaviour’. For the ‘fact’ of ‘behaviour’ to be relied upon, the petitioner must prove that the respondent has behaved in such a way that it would be unreasonable to expect the petitioner to be able to live with them.  Judge Tolson had found that the marriage had broken down, although the petition for divorce was not granted as the allegations of behaviour that Mrs. Owens relied upon were often found to be ‘exaggerated’ and at best ‘flimsy’.  Mrs. Owens then proceeded to appeal to the Court of Appeal (CA) and subsequently the Supreme Court (SC).

Despite their apparent disagreement with the consequence of the decision, the CA and SC concluded that Judge Tolson had applied the substantive law correctly and unanimously dismissed Mrs. Owens petition for divorce.  The grounds of appeal to the CA relied on: (i) the failure to make findings of fact, (ii) failure to assess the wife’s subjective characteristics, (iii) failure to assess the cumulative impact, and (iv) failure to apply the law correctly.   The CA concluded that Judge Tolson had directed himself correctly; thus rejecting the grounds for appeal. LJ Hallett unenthusiastically identified that under the current law, being trapped in an unhappy marriage is not a ground for divorce.  However, citing Cretney, LJ Munby highlights the case of Owens on a conceptual level as a challenge to the principle of public policy  for the courts obligation to ‘inquire into the facts’ of each case.  LJ Munby concludes that this principle of state intervention underlines the reality that its application is not justified because in practice not only is there an overall lack of scrutiny in judicial inquiry, but many petitions are dishonest.  This is supported by the 592 cases examined in Trinder’s study where there was not one where the court raised questions about the truth of the petition because in practice it is more of an administrative process and less a judicial inquiry.

Mrs. Owens appeal to the SC relied on the novel interpretation of the third phase (‘assessment of cumulative impact’) of inquiry’s ‘subjective element’.  The SC concurred with that of the CA in that Judge Tolson’s direction of the inquiry as an ‘objective test with subjective elements’  was correct, however the Lords concluded that the outcome of Owens could have resulted differently if the case had been managed with evidence properly marshalled at first instance.  LJ Wilson’s judgement (with whom LJ Black and LJ Hodge agree) outlines that the current law practices a three-stage divorce inquiry.  Conversely, Lady Hale had provided three misgivings that she felt were cause to send the case back for a rehearing, however she concluded that this would only result in additional hardships for the parties.

The first phase (as determined by LJ Wilson) is an evidential inquiry that requires a determination of the allegations made in the petitioners’ application.  This phase is objective and was satisfied in the case of Mrs. Owens. Despite the objectivity of this phase, Lady Hale believed that Judge Tolson had thought there to be a casual link between the ‘behaviour’ cited and the breakdown of the marriage.   It is also worth noting that Lady Hale identifies that general reference to the misleading diction of “unreasonable behaviour” is a reflection of the troubling nature that the current law seeks ‘blame’.   The DRA removed the concept of ‘matrimonial offences’ in an effort to sweep away the assignment of blame, yet the requirement of ‘behaviour’ evidences that the current law still seeks to do so.

The second phase is the contextual effect the behaviour had on this particular petitioner and their personal disposition.  The SC found this phase to be satisfied because trivial allegations are sufficient if the respondent’s behaviour on the petitioner has a ‘cumulative’ effect.  However, Lady Hale’s dissent emphasizes the importance of conducting a hearing that would enable the cumulative effect of behaviour to be evaluated properly because isolated incidents of ‘behaviour’ may have a destructive effect in their totality.

In the third phase the court must evaluate if the effect of the behaviour on the petitioner would make an “expectation that the petitioner continue to live with the respondent to be unreasonable”. This phase was found not to be satisfied by Judge Tolson due to Mrs. Owens allegations defined as “at most minor altercations of a kind to be expected in a marriage”. LJ Wilson expressed unease about Judge Tolson’s evaluation of Mr. Owens conduct in its totality, however it was concluded that it was inappropriate for the SC at this point to intervene with the judgement at first instance as the law was applied correctly.  It was for this reason that it would be reasonable to expect the wife to live with the husband until a period of five-years separation was complete; appeal dismissed.

This third phase prima facie appears objective, yet it is the courts duty to apply the facts of each individual case in accordance with the MCA. Case law has defined the application of this phase to be considered as: would any right-thinking person come to the conclusion that this respondent has behaved in such a way that this petitioner cannot reasonably be expected to live with them, taking into account the whole of the circumstances and the characters and personalities of the parties? Morgan states that the court’s determination of the ‘right-thinking person’s view is an objective element.  However the application of the MCA to individual cases is subject to change over time due to the altering of social and moral norms, thus making it more of a subjective inquiry from the court.  In the context of the behaviour threshold within a marriage, it is unreasonable to assume that case law from nearly half a century ago is still sufficiently applicable to modern social standards, as reaffirmed by the court’s hesitation to apply the principle in Ash v Ash to the context of modern family law.  In Hadjimilitis (Tsavliris) v Tasavliris the court granted the wife a decree nisi based on the husband’s criticisms, demanding behaviour, and public humiliation.  The similar allegations found to be unsatisfactory in Owens indicates differing interpretation from the courts, thus evidencing subjectivity. As indicated previously, the SC did express feelings of unease with the trial judgement, thereby suggesting Tsavliris being the rule and Owens the exception.  

Recognition for Reform

The Supreme Court cannot change the substantive law, yet their interpretation of the MCA on the facts shows recognition of the need for reform. The significance of the decision in Owens has lead to numerous calls for reform. LJ Munby has disclosed that many view the current law as “out dated and antediluvian” as it does not adhere to society’s shift in values over time. Despite the outcome of Owens, the majority of the judiciary invite Parliament to enact new legislation that would allow for spouses such as Mrs. Owens to become divorced under the circumstances.  LJ Hallett states that the marriage between Mr. and Mrs. Owens has ended despite the courts denial, thus reform of the MCA would enable spouses trapped in an unhappy marriage to get out.  The lack of similarity that Judge Tolson’s subjective decision – of the cumulative affect that the ‘behaviour’ had on Mrs. Owens – with that of the average modern individual in a progressive society  reflects the current law’s need for reform.

Outside of the judiciary, Resolution and the Times  have actively campaigned for a reform to a no-fault system of divorce. Yet, these calls for reform are nothing new as the legal community has identified issues with the hybrid-based system for decades.  However no major empirical studies had been conducted on divorce law in practice since the 1980s.  That is until in 2017 when the Nuffield Foundation produced a report lead by Trinder on how the MCA’s use of Fault impacts modern divorces in practice. The outcome of Owens, and findings from the Nuffield study have since transpired in the current MoJ Consultation Paper’s proposals for reform.

The Current Law

The law for divorce in England and Wales is outlined in the Matrimonial Causes Act (MCA) 1973. Under the MCA an individual may rely on one ground for divorce, which is that the marriage has irretrievably broken down.  The applicant may prove this has occurred by relying on one of the five ‘facts’.  The ‘facts’ that may be relied upon for opposite-sex couples  are as follows: (a) adultery, (b) unreasonable behaviour, (c) desertion for continuous period of two-years preceding petition, (d) separation for a period of two-years with consent, and (e) separation for a period of five-years without consent.  It must be noted that the “fact” that the petitioner chooses to rely on does not have to be the cause of the marital breakdown.  However, under the current law, contested cases must satisfy the court via one of the “facts” in order for a decree nisi to be granted.  The requirement to assign blame under the MCA 1973 indicates the objectives of the current law in theory are to provide justice to the petitioner and to protect the institution of marriage. There are a number of factors that determine what ‘fact’ a spouse or couple may rely upon, however the shift of influence amongst demographic and socio-legal factors will show that the use of Fault under the current law results in hypocrisy and intellectual dishonesty.

‘Behaviour’ and inaccurate petitions

The behaviour threshold since the enactment of the MCA has drastically altered. Despite the decision in Owens, in practice the courts will rarely decline a petition that relies on ‘behaviour’.  As a result, the number of divorce petitions that have relied on ‘behaviour’ has increased exceedingly whereas ‘adultery’ has declined.  Trinder states this shift of reliance from adultery to behaviour does not reflect a lack of marital fidelity but more the decline in the courts application of a strict behaviour threshold.

Over the past few decades, case law surrounding behaviour petitions has evidenced a considerable dilution of Fault through the lowering of this ‘behaviour threshold’. In Thurlow v Thurlow, the court held that passive behaviour caused by a medical condition could be interpreted as sufficient under the MCA even if the behaviour was not their fault.  In O’Neill v O’Neill the court found a husband’s removal and delay in replacing a toilet seat to also be sufficiently unreasonable; thus proving the ease in which ‘virtually any spouse’ could receive a decree nisi when relying on ‘behaviour’. The Law Commission has concluded that the current law is “confusing and misleading which in practice encourages parties to lie or exaggerate”. Trinder’s study reveals that 29% of respondents stated that the ‘fact’ relied upon had ‘very closely’ matched the real reason for breakdown and 29% said that it did not match the real reason ‘at all’.  These dishonest petitions being submitted to the courts are troublesome due to the lack of respect for not only the current law, but also the institution of marriage; thus undermining the objectives of the law in theory.

The hypocrisy and intellectual dishonesty  of divorce petitions are nothing new in divorce law. Prior to enactment of the DRA, ‘hotel case’ examples highlighted similar tactics of dishonesty. In these a couple would collude to put forward a false petition of ‘adultery’ supported by evidence of a hotel bill or sightings with an adulterer in order to obtain the divorce they wanted.  After enactment of the current law, it was found that the lack of correlation between the ‘fact’ petitioned for and the real reason for the marital breakdown was still evident.  Therefore although the current law no longer requires the charade of a ‘hotel divorce’, the shift in the number of petitions filed from ‘adultery’ to ‘behaviour’ evidences that the same tactics have been replicated.  The cause of these inaccurate petitions in order to satisfy Fault will be shown to stem from a variety of influencing demographic and socio-legal factors that the current law does not accommodate.

Factors that influence the use of Fault

This issue of dishonest petitions stem from a range of factors that may influence an individual’s reliance on Fault. From a rights-based perspective, the law should establish a place for traditionally marginalised groups and help shape the socio-political climate.  The current law is unsatisfactory in this respect because a couple’s demographic and socio-legal profile plays heavily on their use of Fault in the divorce process even if they do not wish to assign blame. In the past, the Law Commission has identified the most accurate predictors of the use of Fault to be economic status, the presence of children, and sex.  Despite the large influence that children have on a parent’s reliance on Fault , Trinder’s study evidences that these predictors have shifted over time, concluding with the retention of legal representation and duration of marriage as the strongest predictors of the use of Fault.  This section will go one step further and contend that Trinder’s findings might have been more interesting if it had considered the casual link between all the influencing factors and how economic status is the overarching element of determination for Fault reliance. These factors are important to consider as it highlights the consequences that the current law’s theoretical aims have on individuals in practice.

The first predictor of the use of Fault presently is the retention of legal representation.  Family law professionals are aware of what the current law’s process requires, therefore they often persuade their clients to proceed with relying on Fault because it enables couples to divorce quickly.  Therefore the desired duration in which the divorce process occurs is often linked to the economic status of the individuals involved. For example, lower class individuals are often found to rely on Fault due to the speed in which the assignment of blame enables couples to become divorced under the current law.  Conversely, middle/upper-class individuals often rely on ‘separation’ as they are more likely able to afford to live apart for a period of two-years.  Lawyers encourage Fault for lower class individuals because even if the respondent wishes to counter the allegations made against them, it would be impractical to do so due to the inevitable increase of legal fees, duration of the process, and need to finalise support.  This socio-legal issue is evident by the numerous cases that go uncontested simply due to financial costs.

The second largest predictor of the use of Fault presently is the duration of marriage.  The correlation between marriage duration and economic status is apparent from the influence that financial matters have on marital stability. Considering on average the wealth of a couple increases by 16% per year of marriage, the longer a couple remains married therefore decreases the likeliness for divorce  because empirical data  over the last 50 years evidences  that annual incomes that are 16% above the national median decrease the risk for divorce by 30%.  This shows that the affect that martial duration has on the economic stability of a couple is profound because, as discussed above, the higher financial bracket a couple is in the more likely they are to retain legal representation and less likely they are to use Fault.

Another large predictor of the use of Fault presently is sex.  The total average of ‘behaviour’ petitions consist of 69% female and 31% male, with 32% of all divorce applications from women petitioning under ‘behaviour’.  Despite the remaining inequality for women in modern society, the shift towards equality with respect to women’s roles in the workplace and home have affected their options in marriage by increasing their bargaining position to leave.  The large percentage of women who rely on ‘behaviour’ in their petitions  evidences that liberalized social values that began in the 1970s onwards have rightfully resulted in women’s heightened standards of treatment both inside and outside of the marriage.  From a feminist perspective, although family law policy has shifted dramatically from the times of a wife’s inability to apply for divorce , the current law still inadvertently causes hardships and discrimination for women.

Rights of Women (RoW) identify three main ways this discrimination is prevalent under the current law:   (i) it keeps women in abusive relationships longer, (ii) it forces a reliance on ‘unreasonable behaviour’ that unnecessarily raises the risk of further abuse, and (iii) it provides an opportunity for spouses to continue their abuse during the court proceedings.  In Owens, LJ Wilson identifies that developments in family law aim to recognize the equality of sexes  but the current law does nothing to aid women that are stuck in an unhappy marriage.  Trinder’s study evidences that 42% of behaviour petitions that were analyzed alleged abuse.  The traditional notion that mothers must “stay for the children” in abusive relationships has proven to be illogical as studies show that this actually has adverse effects on child behavioural problems .  However the current law requires blame in contested divorces – therefore spouses whom are subject to abusive husbands may feel trapped under the MCA due to the fear of repercussions that may arise from assigning blame. As a result, the effects of divorce on women show that 43% of mothers admit to contemplating suicide during the divorce process  and/or hold feelings of entrapment; all of which are contrary to other objectives of family law and the role of women in modern society.

In summary, it has been shown from the discussion thusfar that in contested cases under the current law, the requirement to evidence the marriage has irretrievably broken down by proving one of the five ‘facts’ has lead to many petitioners choosing to rely on Fault in order to secure a petition quickly. This reliance on Fault is nothing new in UK divorce law. Prior to the introduction of ‘behaviour’, divorce statistics show that most petitioners had relied on ‘adultery’ for similar reasons and the ‘hotel cases’ brought to light the issue of dishonest or exaggerated petitions that were being submitted to the court. Even after the enactment of the current law, the shift of reliance from ‘adultery’ to ‘behaviour’ reveals that the issue of inaccurate petitions has not ceased. Trinder identifies that the shift from adultery to behaviour is not a consequence of martial infidelity but the lowering of the ‘behaviour’ threshold that has since resulted in the dilution of Fault. Considering findings  show that there is no link between the ‘fact’ relied upon and the reason for marital breakdown , the decision for petitioners to rely on Fault opposed to ‘separation’ or ‘desertion’, stems from a range of demographic and socio-legal factors. Although these factors have shifted over time, the overarching element of economic status is still the strongest predictor of the use of Fault due to the casual link that it has with the other influencing factors. This disconnection between the law’s objectives in theory and its use in practice evidence the law as having an inaccurate moral discourse. This inaccuracy will be discussed further in chapter two, but before that, it is important to show the psychological impact that a retrospective law in theory has in practice.

Psychological Impact

The ground of ‘irretrievable breakdown’ can be viewed in a prospective manner, however the requirement to evidence ‘facts’ proves the current law to be retrospective in its foundation because it requires couples in contested divorces to assign blame against each other to the court in order to secure a divorce quickly and does not look to the future interests of the parties. This retrospection is non-justifiable because it forces couples to view the process in a hostile manner that only makes the experience more difficult. Parties involved often rely on a Fault with hopes to obtain a quicker divorce that will minimize harm. However this harm inflicted during divorce is not exclusive to economic hardship, but has also shown to affect the psychological well-being of those involved.

Divorce is an emotionally painful event for all parties involved, which may affect short and long-term psychological functioning.  The association of divorce has been linked to increase anxiety, depression, alcoholism, and suicidal tendencies that results with individuals often resorting to psychological manoeuvres to cope with the hostility and onslaught.  The most common manner in which divorcing couples do this is by creating a narrative where one of them is the perpetrator and the other a victim.  Trinder highlights that divorce petitions are not an accurate reflection of what caused marital breakdown, but are more a narrative that secures a divorce under the current laws requirements.  Assigning blame under the current law aids this psychological coping strategy for parties in the short term, however it will be shown to often result negatively in the long-term, specifically for children.

One of the current law’s primary objectives in theory has shown to be providing justice for the petitioner, whereas overarching modern family law policy seeks to reduce conflict in order to uphold the child’s best interests and well-being.  Despite surveys indicating that 81% of people believe that children are those that are most affected from divorce,  the current law’s effect on children has been considered ‘one of the most serious’  aspects that has not adequately provided for their interests.  Studies  find that children that are subject to divorce are more likely to have lower educational attainment, lower incomes, less prestigious occupations, greater risk of unemployment and an increased likeliness to live in social housing.  Further reports conclude that children whose parents divorce experience an increase in anxiety and depression in comparison to children who are not subject to a divorce process.   However children that are subject to pre-divorce family dysfunction are found to have a decrease in antisocial behaviour when the parental relationship is dissolved,  thus indicating the source of the psychological harm to be from conflict and not the actual divorce.

It is important to note that parental conflict is not the only contributing factor to a child’s psychological well-being, yet the impact of parent conflict during divorce is a highly influential component.  This is because children that are subject to unresolved parental conflict and witnesses their parent’s inability to resolve issues pragmatically often learn that disagreements can only be solved through conflict, which in turn can have a negative effect on the child’s current and future relationships.  Furthermore, allegations of conduct have found to detach the child’s affection towards the parents because the parental depression that is often caused from assigning blame has been found to negatively affect the relationship with the child as it limits parent responsiveness and/or (emotional) availability.  Trinder’s study evidences that 62% of petitioners and 78% of respondents felt the use of Fault had made their experience more bitter, concluding that the (often exaggerated) infliction of Fault escalates conflict during the divorce process that children may be subject to.   There is on average 84% of divorce cases that have children under the age of 16 that “inevitably involve precisely the bitterness, distress and humiliation the current law has declared to minimise”, thus evidencing a disparity between the law in theory and practice that children are subsequently victim to.

To conclude the first part of this piece, the current law’s objectives in theory often influence the use of Fault in order to secure a divorce quickly and minimize financial hardships. The affect of this discourse in theory has shown to not only increase the risk for further abuse and feelings of entrapment for women, but to also unnecessarily increase conflict that children may be witness to. All of these adverse consequences of the current law can lead to negative psychological functioning (especially for the children) that may take form of behavioural or relationship problems. These effects of the current law run contrary to what reform of other areas of the family justice system have aimed to accomplish.

Chapter 2: Two Conflicting Moralities

The influence of demographic factors and psychological impact show that the crux of family law objectives and the issues surrounding it are of socio-legal significance. Family law is rooted in subjective elements because there is no accepted definition of what a “family” is. Theoretical perspectives of family law can be used to assess how the law should operate in accordance with current societal values. The following assessment of the current law in relation to overall family law policy will be conducted through the lens of functionalism because of the law’s inherent link to ever-changing times and societal morals.  LJ Munby states that it once was the role of the courts to be custos morum, yet judges today are tasked with the assessment of reasonable people according to today’s morals and not of those of the 1970s.  A functionalist perspective regards family law as having a series of goals/objectives to be fulfilled  and as social values change over time and moralities alter, it is necessary for family law to evolve to reflect modern objectives.

Principles of modern family law do not aim to enforce a substantive moral vision in theory because individual moral perspectives on divorce differ from each person due to their pre-existent responsibilities and biographies.  Due to conflicting moralities that individuals may hold, the Law Commission states that modern family law is “not capable of being reduced to simple certainties”, yet the moral standpoint of the current law on divorce proves contrary in theory. The theoretical objectives of the current law on divorce under the MCA differ from how it operates in practice. It will be shown that the law in theory takes the form of a justice morality but in practice the current law operates with a pragmatic morality – that objectives are more in accordance with modern societal values and overarching family law policy – to apply the law in the least harmful and most efficient way possible.  These conflicting moralities in theory and in practice reflect the disconnection between the substantive law’s attempt to legislate morality and the family law community’s efforts to regulate behaviour. As evidenced previously, social values have shifted dramatically because the acceptance of same sex marriage, independence of women, and interests of the child indicates liberalized values of equality and care are much more apparent today than when the DRA was enacted in the late 1960s, thus eliciting an out of date law on divorce.

The ‘justice’ based moral approach can be classified as ‘justice’ opposed past definitions of ‘traditional’ and ‘literalist’ because its objectives are to provide justice to the petitioner and protect the institution of marriage across all kinds, whereas traditional moral values in family law often relate to the longing for stability in a two-parent heterosexual relationship which mirror more ‘Victorian era’ principles.  These traditional moral values do not reflect the objectives of both the current law on divorce and other areas of family law policy in modern society.  The use of the ‘justice’ morality mirrors the purpose of Fault as it aims to achieve two objectives in theory: (a) to provide justice to the petitioner so that the psychological coping strategy of the perpetrator and victim can be fulfilled,  and (b) to act as a safeguard against easy divorces that would undermine the institution of marriage. It is for these reasons that the term ‘justice’ has been used to define this moral discourse. The ‘literalist’ moral approach would be an accurate description prior to the enactment of the current law, yet the introduction of irretrievable breakdown as the sole ground for divorce has evidenced a shift away from this literalist morality. ‘Pragmatism’ differs from literalist because its moral dimension is focused on achieving a ‘good’ divorce that has the least negative impact, whereas literalist is more focused on literal blame and punishment.  The use of these moral discourses as the ‘interpretive skeleton’ of this paper is intended to be an expansion on Trinder’s micro analysis of individuals within the divorce process.  Examining this area of law through the prism of two moralities juxtaposed with micro and macro perspectives can enable a wider understanding of the issues that have caused this ambivalence underpinning the law

From a micro-perspective, these two individual moralities mirror the state of the law on divorce presently in England and Wales. As discussed above, the moral discourse that the substantive law (in theory) encompasses is one of justice, yet divorcees and the legal community have shown to proceed pragmatically in practice. Trinder summarizes individuals during the divorce process as having moralities of justice or responsibility.  Individuals who hold a justice oriented moral code seek the truth through the assignment of blame being accurately determined for the marital breakdown.  The reduction of harm is not of importance to these individuals, however qualitative data  shows that in practice legal professionals often attempt to restrain these justice oriented wishes of excessive hostility due to the irrelevant effect that these submissions would have on the judiciary’s decision in practice.  Conversely, individuals that hold a moral code oriented around responsibility/pragmatism seek to minimize harm to preserve relationships, especially for the children.  These micro level findings are an extension on Trinder’s determination of how individual’s choose to proceed when they divorce  in the sense that not only are individual moral discourses conflicting but the use of the MCA is as well. In other words, the substantive law outlined in the MCA reflects this moral approach of justice, whereas the courts and individuals in practice reflect a more pragmatic moral discourse.  The results of the divorce under the current process from each moral approach can be summarized in Figure 3.

Results indicate that the current law’s ‘justice’ based morality aids those that seek goals parallel with that moral approach. These goals may result in instant gratification, yet the long term spill over effects are more prominent when this approach is taken.  Those that approach the divorce process pragmatically often cite the experience as slow and frustrating due to the requirement to wait 2-5 years before a decree absolute is to be granted. However the delayed gratification that is acquired from proceeding pragmatically is evidenced from the lack of negative spill over effect that would have been resulted in a divorce of conflict.

This relates to the conflicting moralities in modern family law because those whom proceed pragmatically are not only proven to be more satisfied with the process in the long run , but are also often subject to qualities of the upper class (such as higher education and financial satisfaction).  As discussed in chapter one, the economic and psychological hardships that result from the use of Fault can be profound, therefore proceeding pragmatically can reduce these negative effects but the law must encourage this process to all demographics by removing Fault all together.

From a macro-perspective, the liberalized social values of modern society, overarching family law objectives, and reform to a no-fault based system can be considered to incline towards pragmatism because of principles of care. This concept of conflicting moralities within family law can be related to the feminist theory surrounding ethics of justice and care. This theory arose out of feminist appreciation for care but its relevance within a democratic framework is an inherently human ethic because being cared for is a universal experience.  This is important to consider because the ethics of care relate to human needs and social emotions, whereas ethics of justice are oriented towards human rights and moral rules.  Like justice and pragmatism, these conflicting moral perspectives produce different results when divorcing. The influence that demographics and socio-legal factors have on our moral choices within family law has shown to be profound  but the ethics of care transcends psychology and moral theory because it reflects the goals of modern familial relationships in law which is that of ‘doing’ family opposed to ‘being’ family.  These moral theories based in pragmatism and care practice doing the responsible thing in the context of conflicting relationships whereas justice moral approaches neglect these factors and connote the restraint of aggression that can lead to negative psychological effects.  Henceforth, the current law on divorce should mirror that of other modern family law principles and encourage pragmatism as its focus towards no-fault would enable for a swift divorce and reduce conflict.

These pragmatic moral discourses come from a premise of connection and connotes an act of care that seeks solutions that are most inclusive of the collective’s (in this context, the ‘family’) needs and not the individual.  Sandel argues the mode of governance that the current law enforces is indeed liberalist because it provides a ;neutral’ framework of rights that free moral agents may use to provide their conception of a ‘good life’.  However he contends that this mode of governance is wrong to be applied to the collective (in this context, society) due to the moral ties that individuals are subjected to from our biographical dispositions (i.e. genetic psychology, economic status, culture, etc.). Reece defines this shift to increased moral responsibility by removing Fault as ‘post-liberal’.  She states the increased moral pragmatism in practice allows us the opportunity to ‘divorce responsibly’ because both family law policy and morally pragmatic values are oriented towards harm-minimization.  Yet the law in theory aims to provide justice for the petitioner and for this purpose the current law’s emphasis on motive and intent (as determined by Fault) can be considered individualist. Reece concludes that this emphasis is incorrectly placed because the law should not value the individual over the collective and Himmelfarb  identifies that the law should impose the same moral standard across all demographics to ensure ‘collective’ equality. Considering the overarching objectives of modern family law are that of the reduction of harm and conflict for the family, the law in theory should reflect these aims by conducting a mode of governance that encourages pragmatism for the collective opposed to justice for the individual.

Thus far, this piece has argued that the objective of the current law in theory does not mirror with its use in practice. These conflicting moral discourses in theory and practice reflect the complexities of modern values, but the law in practice evidences that moral pragmatism serves as a strong base for the re-conceptualization of the substantive law because of the lack of negative spill over.  In theory, the use of Fault to prove irretrievable breakdown of the marriage does not seek to minimize harm that the family may be subject to endure, but to provide justice to the petitioner and protect the institution of marriage.  Yet in practice the courts lack of scrutiny of petitions and lowering of the behaviour threshold is evidence of the judicial discontent as to the current law’s requirements and desire to keep family policy consistent with evolved societal morals. Also, the use of Fault in the divorce process is contrary to that of other family law policy as empirical and qualitative evidence indicates its use only aggravates economic and psychological hardship that the family may be subject to.  These economic and psychological effects prove that for the most part divorce is an unwinnable event; therefore a morality based around justice can be considered inaccurate as perspectives of the law in a micro and macro context accentuate a desire for a law on divorce that is pragmatic and encourages a process that will result in the least defeat as possible for all those involved.

National Comparatives

The metamorphosis for the law on divorce in England and Wales to a no-fault based system is conservative in comparison to other progressive jurisdictions. From a global perspective, England and Wales can be considered as one of the most progressive nations in the world.  However, unlike many of its progressive peers, England and Wales has fallen by the wayside in comparison to other jurisdictional reforms of divorce laws. Considerable research has been conducted in British academia on the comparison of Scottish reforms  albeit little analysis has been made in comparison to the effects of reform in multiple jurisdictions.  Henceforth investigation into these national comparatives is pertinent to assess the effect that reform to a unilateral divorce law will have on England and Wales. The most common criticism to the shift to a no-fault based system is the affect that it will have on divorce rates in general and thus undermining the institution of marriage. Notwithstanding, analyses of other national reforms of divorce laws will conclude that an increase in divorce rates are not correlated to the adoption no-fault based laws but are a consequence of wider sociological and/or pre-existing factors.

Family law is inherently linked to a kaleidoscope of factors that merge sociology, economics, and demographics.  The latter two issues in the context of divorce law are often displaced when arguments against no-fault rely on the subsequent increase in divorce rates that tend to occur after reform to unilateral divorce laws. In past sociological conclusions on the divorce rate are often drawn because it illustrates a collective phenomenon, yet these sociological phenomenon’s can be explained more accurately by analysing “individuals behaviour that is contingent on pre-existing macro structures”.  This problem of ‘endogeneity’ will show that the increases in divorce rates post reform are contingent upon a shift in sociological factors that reflect modern societal values and less the genesis of the substantive requirements of the law.

Short-term spike that levels out

Reform to a no-fault based system does show an immediate increase in the divorce rate, however in the long-term divorce rates are found to level out and in some instances decline.  This analysis can be evidenced in the context of multiple jurisdictions that are culturally homogeneous. The most obvious example of this “short-term blimp” effect on divorce rates is the Family Law (Scotland) Act 2006  that implemented divorce reforms to a law that is similar to that of the MCA 1973.  Scotland’s reform to a separation period of one-year with consent and two-years without consent evidences a shift to pragmatism that Trinder concludes to have resulted in a short-lived spike of the divorce rate that has since declined.

These findings in the context of Scotland also mirror that of other international comparatives. Finding Fault (a comparative study of thirteen jurisdictions across Europe and North America) concluded that there was “no evidence that the divorce rates would have a significant or long-lasting effect on the propensity to divorce” . This conclusion mimics that of previous (and longer) quantitative investigations on the matter. Kneip and Bauer’s quantitative evidence on eighteen Western European countries  over the course of 43 years (1960-2003) also predicted that legal rights to a unilateral divorce would not affect long-term divorce rates.

High divorce rates are not exclusive to no-fault systems. Nations that have not introduced such laws have shown to yield negative coefficients as the divorce rates have continued to increase rapidly whereas no-fault jurisdictions have shows to regress to the mean over time.  The argument for protecting the institution of marriage against no-fault divorce in the hopes of reducing the divorce rate is flawed since a comparative analysis shows the divorce rates in other unilateral divorce systems to be unaffected in the long-term by the change in law. The steady increase in divorce rates long-term will be shown to stem from other factors unrelated to a nations substantive law on divorce.

Inefficient Marriages

A major factor that has historically caused an overall rise in divorce rates is this concept of efficient and inefficient marriages. The societal shift to more liberalist values of equality has produced more independence for women. As women’s employment rises, their options within the marriage do so as well, which may be an explanation for the rise in divorce rates. Allen argues that the short-term spike that follows no-fault divorces is caused by the increase in inefficient divorces that can be dissolved because of the changes in the workforce for women. To prove this hypothesis an aggregate collection of quantitative data from the nations analysed by Kneip, Bauer, and Teachman in comparison to the average gender employment gap over the last two decades will show that this correlation is accurate.

According to a definition provided by Allen, an ‘inefficient’ marriage is one where “the total wealth is higher when the couple is separated than when together”. Wealth in this context is not exclusively referred to as monetary value but also reflects any commodity (tangible or not) that the individuals in the relationship may value (e.g. respect, affection, etc.).  Allen identifies that when no-fault divorce laws are enacted it is foreseeable for the divorce rate to increase for a short-term because it enables those (particularly women) within inefficient marriages to escape a past mistakes and receive relief.  Figures 3 and 4 extend on Kneip, Bauer, and Teachman’s quantitative data by collecting an average of the majority of jurisdictions  divorce rates and reveal that as the population of women in the workforce increase, as does the divorce rate. The increase of women’s role in the workforce over the past few decades is likely to influence the amount of inefficient marriages because the independence gained leads to increased marital expectations. Before female employment began to rise, martial expectations often consisted of domestic duties for the wife and income related responsibilities for the husband.  Social changes of equality and increased female labour adjusted these prior conceptions of a wife’s role in the family, thus leading to unfulfilled expectations for both spouses and subsequent errors in partner selection.

Opportunities for women

Social changes that have lead to the increase independence of modern women and probability of inefficient marriages are not exclusive to the decreases in the gender employment gap. Allen identifies that the ability for women to have children at a later age in addition to the decrease in the likelihood for mortality during childbirth increases the opportunity to escape an unhappy and inefficient marriage.

Furthermore, the concept of economic status being the overarching influential factor for divorce aids this correlation between equality for women and divorce rates because the shift of bargaining power for women inside the marriage enables them the opportunity to divorce from difficult situations.  Stevenson and Wolfers identify that reform to no fault based divorce laws would aid the shift of bargaining power to women even more which may be a cause for the short-term spike in divorce rates in jurisdictions that have reformed as these inefficient marriages enable to separate without negative spill over.  For example, another factor that may cause a wife to feel trapped in a marriage is the fear of repercussions (i.e. domestic violence) that assigning blame may give rise too.  However in U.S. states that have adopted no-fault systems it was found that female suicide and domestic violence rates decreased.

In summary, initial conclusions in regards to the rise in divorce rates after enactment of unilateral based laws are paradoxical as quantitative data from other national jurisdictions that have adopted some form of unilateral divorce indicates that the rise is more a problem related to ‘endogeneity’ than the substantive law reform. Empirical research signals that social changes of equality promoted independence and shifted marital bargaining power and opportunities for women that ultimately enabled spouses who were members of inefficient marriages to divorce with less fear of physical, social, or financial repercussions. These shifts towards unilateral divorce laws in other national jurisdictions correlate with modern society’s inclination towards a pragmatic morality because the law in theory accurately reflects the progressive developments in practice.

Chapter 3: Further Shifts to Pragmatism

This paper has posed that the heart of the issue in regards to the current law on divorce in England and Wales is one of inconsistent moral frameworks. The law and courts can either provide a process of justice towards the petitioner and the institution of marriage (justice moral discourse), or it can focus on autonomy and harm-minimisation for the family (pragmatic discourse). At this point, the paper has shown that in theory the law is of a justice morality, yet it practice it is pragmatic. The proposals for reform from the MoJ provide acknowledgment of this issue of inconsistent moral discourses of the current law in theory and in practice and evidence its shift towards pragmatism. However, strategies to enhance this shift to pragmatism might involve slight modifications to the following.

One-year ‘separation’

The objectives of the MoJ’s proposals for a six-month minimum timeframe mirror that of both pragmatic and justice moral discourses as it would allow the couple time to reflect on their decision – thus protecting the institution of marriage – and to make the process as pain-free as possible – thus reducing harm.  Both the proposals of altering the minimum timeframe and retaining the bar on divorce petitions within the first year of marriage  are areas of debate because of the difficulty in determining the correct balance of these moral discourse objectives. In other words, the state intervenes in an attempt to protect the institution of marriage by implementing mandatory waiting periods, yet it also attempts to enable autonomy and reduce harm by minimizing these mandatory periods. Therefore the Law Society and Bar Council pose that removing the bar on petitions would be more aligned to pragmatic objectives of autonomy  and reduction of harm, however this paper contends that using this theoretical consideration is more relevant to be considered in the context of the ‘minimum timeframe’ proposals and will conclude that the reforms should go one step further in its shift to pragmatism by implementing a one-year minimum ‘separation period’  before the divorce process begins opposed to the current proposal of six-months.

Reforming the minimum timeframe to one-year from the date of separation (i.e. date the marriage has irretrievably broken down) can provide a pragmatic solution that would allow for both sides of the argument to be satisfied. Trinder’s recent report identifies that the inclusion of a ‘separation period’ provision in addition to a notification scheme is common amongst other jurisdictions.  This proposal was considered in the Law Society’s response, however it was not considered in the MoJ Consultation despite its commonality amongst other jurisdictions. In a practical sense, other international jurisdictions commence the relevant notification scheme/waiting period when both parties are made aware of the application with the purpose to act as a safeguard against unexpected divorces and also enable autonomy for the parties.

A common criticism against no-fault reform is that it allows for an easy divorce and thus undermines the institution of marriage. The MoJ’s proposals and relevant responses concur that some couples  require a period of reflection before a divorce is finalised.  Despite the accuracy of this statement, the current average timeframe of six-months for a decree absolute when Fault is used does not make the process any more difficult in a temporal sense in comparison to the MoJ’s proposals.  Therefore the proposal to make the minimum timeframe for divorce is likely to undermine the goals of a justice morality because the ‘quick divorce’ would still be available except without the requirement of Fault. Conversely, those in favour of no-fault have outlined that the requirement for two-years separation even with mutual consent as too long of a timeframe.  This duration is non-pragmatic because the MoJ and Law Society have stated that the use of Fault is often linked to an individuals desire to avoid waiting a minimum of two-years before the divorce is finalised.

To conclude, this one-year separation period adjustment to the MoJ’s current proposal would serve as a middle ground between the average timeframe for divorce presently (six-months) and the minimum timeframe currently required when the couple does not wish to assign blame (two-year separation). The one-year timeframe would also satisfy those who value reflection because it enables a reasonable period to consider reconciliation and at the same time discourages parties from relying on alternate routes to obtain a divorce (such as fault) that may promote conflict.

Collaborative Practice

In Britain, the FLA attempted to enact a theoretical framework that mirrored wider family policy in the form incorporating mandatory mediation meetings to encourage reconciliation. However, this was shown through the pilot studies to be non-pragmatic as the emphasis on mediation fails to account that most couples are already beyond reconciliation by the time they are filing for divorce. Initial claims that the information meetings were the main cause of the FLA’s failure has proven to be inaccurate as following statistics indicate that nearly 90% of attendees found the meetings useful.  Despite the substantive law (with respect to no-fault divorce) of Part II of the FLA never being enforced, funding for mediation was and has thus become a statutorily recognised process for divorce.  This paper contends that a more pragmatic solution may be the implementation of mandatory information sessions conducted by family law professional or notification upon completion of the online divorce application to inform them on the benefits that proceeding collaboratively may provide as the new opportunities in collaborative practice have shown to be profound in terms of harm-minimisation and judicial efficiency.

The collaborative process typically consists of a series of four way meetings with both parties and their lawyers. During these meetings the parties will sign a Participation Agreement indicating that they agree not to issue court proceedings and that the meetings will be conducted in a civil manner.  If the collaboration ends and the parties wish to pursue litigation, then neither lawyer is permitted to represent the party during those court proceedings; thus giving the lawyers incentive to resolve the disputes extra-judicially.  This disqualification requirement is advantageous as it focuses both the lawyers and the clients to achieve the outcome that is in the interests for both parties because all members share the risks and costs of failure. This process not only offers flexibility for the interests of the client, but also takes into account the multitude of factors that are present in divorce. The opportunity to make arrangement in a safe and amicable environment enables the parties to not only receive the psychological catharsis needed within a divorce, but also a sense of closure amongst the couple.

Despite the lack of emphasis currently being placed on this process, both clients and lawyers that do proceed collaboratively report high satisfaction.  Research has shown that this form of family dispute resolution has had the highest client satisfaction above the rest (including mediation) because of the ability for the client resolve matters with civility in a safe environment and with the support of family law professionals.  Studies conducted both internationally and in the UK highlight the satisfactory outcomes from proceeding collaboratively provide.  Amongst all cases studied was 90% were settled and 75% were ‘very satisfied’ overall; 80% indicating they would refer the process to others.  The elements that parties found to be the most satisfactory was the accommodation of schedules and respectfulness of the process overall.  Additionally, the majority of lawyers surveyed stated that they felt collaborative law is a better way to conduct divorce proceedings than litigation.

Participants of collaborative practice can be considered pragmatic because their reasons for choosing the process mirror that of pragmatic moral outcomes. Resolution identifies that clients that choose to proceed collaboratively do so to avoid the stress of a divorce with conflict, the avoidance of court, and to reduce potential misunderstandings between the couple’s interests and counsel.  Proceeding collaboratively is also pragmatic as it speeds up the process with “at least two thirds of the cases settled collaboratively had settled earlier than they would have done had they been dealt with traditionally”. In S v P the collaborative process was granted judicial support as the court suggested (and subsequently approved)  that a shortcutting process could be granted for consent orders that are determined collaboratively.

These results from collaborative law are profound because the data from previous studies indicates that the process encourages the parties to proceed in a manner that mirrors the overarching objectives of family law policy and pragmatism. The overarching objectives of harm-minimisation and the promotion of long-term family relationships are expressly stated by both the Resolution Code of Practice  and the Law Society Protocol  on Family Law.  Presently, the process of collaborative law is not well-known amongst the general public. Surveys show that only 14% of respondents had heard of collaborative practice as an option whereas 44% had heard of mediation, and 85% were made aware that litigation was an option before choosing collaborative.  It has been suggested  that the current Mediation Information and Assessment Meeting (MIAM) that is currently promoted to parties should be place an increased emphasis on alternative forms of dispute resolution (specifically collaborative practice). Resolution has urged Government to not only change the current information sessions to Advice and Information Meetings (AIMs), but also that the AIMS are available earlier in the separation, and finally to extend legal aid for all forms of dispute resolution so that divorcing couples are aware that there are more options than just mediation that can ensure a pragmatic divorce.

The main weakness with this proposal of an increased emphasis on collaborative law rests with its inaccessibility for some demographics. Like those that do not typically rely on fault, those that proceed collaboratively and in line with a pragmatic moral discourse are often from demographics of higher income and education.  Despite the indication that the majority of people that use the collaborative process are of these demographics, the process is available to everyone and no research has evidenced that the costs of proceeding in this manner is any greater than litigation or mediation approaches.  In theory the government has stated an objective to increase the number of couples that use mediation, yet in practice the public funds for mediation have dropped considerably in recent years.  Returning briefly to the availability of legal aid in family law, those in certain demographics are disadvantaged in this sense as it pertains to collaborative practice because it creates a process that will inevitably lead to difficulty in comparison to collaborative processes.

Conclusion

This paper has explored the current state of divorce law in England and Wales through the interpretive skeleton of two moral discourses: justice and pragmatism. Despite the law’s justice-based objectives in theory, its use in practice has shown to incline towards those of pragmatism. Pragmatic moral discourses can be identified with prospective goals of harm-minimization and autonomy. The use of the law in practice evidences this moral discourse to be more accurate because in practice not only has there been a dilution of Fault from the inherent dishonesty of petitions in order to secure a quick divorce, but also the overall lack of scrutiny that the courts will apply. Continuing the analysis from a micro-perspective, research has identified that the current law is discriminatory towards traditionally marginalised groups. Trinder has recently identified that the most accurate predictors of the use of Fault is the retention of legal representation and the duration of marriage.  This paper has gone one step further and contended that although the specificity of the marginalised group does influence their probability to rely on Fault, the overarching trend is linked to economic status. These factors that influence Fault are important to consider because it highlights the discriminatory affect that an inaccurate moral discourse in theory can have on families in practice. Individuals within these marginalised groups often find themselves having to rely on Fault in order to achieve the most pragmatic outcome for the family because of the economic hardships that stem from prolonging a divorce.

The current law’s non-justifiable pressure to proceed with this justice moral discourse in practice has revealed that assigning blame unnecessarily escalates conflict  that in turn can result in the manifestation of negative psychological functioning and behavioural problems in both the couple and children. Research evidences that couples subject to high conflict marital breakdowns often report increased feelings of depression, anxiety, substance abuse, and suicidal tendencies.  The current justice moral discourse does aid these effects by supporting the psychological coping strategy of painting one party as the perpetrator and the other as a victim, however the negative effects of this discourse have shown to be profound on the children. In the short-term, children subject to high conflict that stems from Fault within the divorce process have exhibited higher behavioural problems such as anxiety and depression.  In the long-term, children subject to this route of divorce have also shown to result in lower standards of living, educational attainment, job opportunities, and relationship difficulty with the parents and their future spouses.  These findings and analysis from a micro-perspective display the difficulties that the MCA’s theoretical objectives have on families in reality. The law’s attempt to legislate morality by requiring these retrospective elements is inaccurate to how the legal community has chosen to proceed in practice in an effort to regulate behaviour by favouring a pragmatic process of divorcing that is prospective and aims to reduce harm.

This micro level analysis can then be applied macroscopically in relation to reform to no-fault, wider family law policy, and modern societal values. This paper has theorized that the conflicting moral discourses of the law in theory and in practice reflect that of the disconnection between the MCA and wider family justice policy. Overarching objectives of family law have shifted towards ethics of pragmatism and care  because of the inherent human needs and emotions that families are subject to and the theoretical objectives of the law on divorce should reflect this. The MoJ’s proposals for reform towards no-fault evidence this disconnection between the law in theory and in practice on a micro level and this recognition reflects a shift towards the pragmatic objectives that are present macroscopically in wider family policy and societal values.

Research conducted on other international shifts towards pragmatic divorce laws indicates that reform in England and Wales could be more radical. Further reform towards pragmatism could entail: the incorporation of a one-year separation period or notification scheme for divorce, and an increased digitisation of the divorce process. It is worth noting that these proposals are unlikely to be implemented immediately due to political ramifications that would occur from reforming too radically, however international comparatives indicate they are of valuable consideration. In summation, despite the difficulty of legislating a morality that will stand the test of time, these reforms towards a pragmatic discourse in theory mirror modern values that will in turn restrain behaviour of those in practice that heartlessly seek blame and conflict, and ultimately lead to future socio-legal equity and familial prosperity.

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.