INDISSOLUBILITY AND THE CLEAN BREAK
| Published date | 01 January 1985 |
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00825.x |
| Author | Pamela Symes |
| Date | 01 January 1985 |
INDISSOLUBILITY
AND
THE CLEAN BREAK
WHY
is it proving
so
difficult to formulate a good divorce law with
just and reasonable financial provision? For the past decade our
matrimonial legislation has come under severe criticism for its lack
of clear and consistent principles and for the inherent contradictions
and ambiguities which have inevitably led to discrepancies in
judicial interpretati0n.I In addition, there is ample evidence that,
despite undoubtedly genuine efforts to administer it fairly, our
divorce law is associated with hardship, suffering and poverty on a
significant scale.’ Admittedly, there are additional factors which
are probably more directly responsible for the resulting injustice
(and these will be considered below) but it remains clear,
nevertheless, that the law itself must be internally consistent before
it can be a sensitive instrument of justice.
It was hoped that when the Law Commission considered this
area of the law there would be an opportunity for a thorough
analysis of some fundamental principles. In this regard its two
recent papers were singularly di~appointing.~ The crucial issue of
whether marriage should involve a IifeIong commitment to support
remains unresolved and the Commission, apparently reflecting
public preference, settled for “changes of emphasis” in its
recommendations, retaining the discretion-based framework rather
than opting for a radical restructuring of the law.4 The changes
of
emphasis were designed to promote new policy objectives but in
the absence of clear guidelines as to their applicability in different
circumstances, the Commission’s recommendations were rightly
criticised for being vague and ambiguous, potentially in conflict and
leaving scope for a wide variation in application.’ This cautious and
’
See
0.
M. Stone, “Moral and Material Judgments in Divorce” (1969) Fam.L.Q. 371;
K.
J. Gray,
Reallocation
of
Properry
on
Divorce
(1977), pp.319
el seq.;
J. M. Eekelaar,
“Some Principles
of
Financial and Property Adjustment on Divorce” (1979) 95 L.Q.R.
253;
H.
Barnett, “Financial Provision
on
Divorce: Reforming s.25” (1981) Fam.Law 229;
R.
Deech, “Financial Relief The Retreat from Precedent and Principle” (1982) 98
L.Q.R. 621;
C.
Smart, “Justice and Divorce: The Way Forward?” (1982) Fam.Law 135.
*
See
Report
of
the Committee
on
One-Parent Families,
Cmnd. 5629 (1974); W.
Barrington Baker, J. Eekelaar, C. Gibson and
S.
Raikes,
The
Exercbe
of
the Matrimonial
Jurisdiction by Registrars in England and
Wales
(1977); M. Murch,
Justice and Welfare in
Divorce
(1980); J. M. Eekelaar,
Family Law and Social Poky
(2nd ed., 1984), pp.8699.
Law Com.
No.
103,
Family Law, The Financial Consequences
of
Divorce: The Basic
Policy,
Cmnd. 8041 (1980); Law Com.
No.
112,
Fam.ily Law: The Financial Consequences
of
Divorce
(1981). Paper No. 103 was a Discussion Paper;
No.
112 the subsequent
report.
In essence, the changes of emphasis are (a) that priority be given to the needs of
children and
(b)
that the desirability
of
financial independence
of
the parties be recognised
and a clean break applied where practicable and just.
’
See
J. Dewar, “Reforming Financial Provision:
The
Alternatives” (1984) J.S.W.L. 1
for constructive criticism
of
the proposals from both English and Scottish Law
Commissions and
of
the Matrimonial and Family Proceedings Bill.
See
also, J.
M.
Eekelaar, “Law Commission Reports on the Financial Consequences
of
Divorce” (1982)
45 M.L.R. 420; R. Deech,
op. cit.
639
et seq.
44
Jan. 19851
INDISSOLUBILITY
AND
THE
CLEAN
BREAK
45
somewhat unsatisfactory approach is to be contrasted with that of
the Scottish Law Commission, which attempted to articulate some
clear principles as a basis for its proposals, for example, opting for
the partnership principle of equal sharing of matrimonial assets. As
Dewar concludes in his very good summary of the contrasting
reports from the two Commissions, the Scottish approach at least
acknowledges the complexities of the task and “opens them up for
rational debate” which is surely, he argues, the best route to
lasting and effective reform.6
Recommendations from the Law Commission’s report,
No.
112,
form the basis, very largely, of Part
I1
of the Matrimonial and
Family Proceedings Act 1984, which deals with financial relief in
matrimonial proceedings.’
As
amendments during the Bill’s passage
through Parliament were minimal, the substance of the foregoing
criticism still holds. Doubt and uncertainty remain about how the
new, vague policy objectives will be applied in practice, and
assurances from the President of the Family Division and the Lord
Chancellor are no substitute for a clear and unambiguous statute.*
Somewhat more worrying, is that in order to dispel such uncertainty
and quell public anxiety, the Lord Chancellor’s Department has
considered it advisable to publish an explanatory leaflet which
states how these policy objectives will be applied by the courts-a
novel aid to statutory interpretation to say the least, of dubious
constitutional propriety and a sad comment on our powers of
legislative drafting and law ref~rm.~
The reason these vague policy objectives are
so
described is
because of the lack of a suitable framework within which they can
be applied coupled with the lack of analysis of any underlying
ideology. But these deficiencies must not blind us to the fact that
the new Matrimonial and Family Proceedings Act, under the cloak
of a mere change of emphasis, in fact reinforces a principle of the
greatest significance and one which has aroused the concern not
only of single-purpose pressure groups, but also of the Law
Society.lo The new Act repeals section 25 of the Matrimonial
~
Dewar,
op.
cif.
p.13.
’
Part
I1
(with the exception
of
s.10) came into force on October 12, 1984. The
Matrimonial and Family Proceedings Act 1984 received the Royal Assent on July 12,
1984; the Act abolishes the discretionary three-year time bar for presenting a divorce
petition by substituting an absolute bar on divorce proceedings within one year of
marriage and it revises the guidelines
on
matters to be taken into account by the court
when making financial and property orders in matrimonial proceedings. In addition, it
enables courts in England and Wales, and in Scotland, in certain circumstances to award
financial relief after a foreign divorce and it makes changes designed to improve the
distribution
of
family business between the High Court and the county courts.
See
Legal
Acfion
(May 1984), p.3;
Legal
Action
(June 1984), p.6.
Lord Chancellor’s Department, Information. 84.F The Matrimonial and Family
Proceedings Act 1984 “Your Questions Answered” (July 12, 1984).
lo
Opposition from pressure groups is to be expected. It is unlikely that any change in
financial provision on divorce will be greeted with equal enthusiasm by all interest groups
but the Matrimonial and Family Proceedings Bill incurred the outrage
of
practically every
women’s group in the country, among them: the National Council
of
Women, the
Y.W.C.A., the National Board
of
Catholic Women, the Mothers’ Union, the Married
Women’s Society and Rights
of
Women. Gingerbread and the National Council for One-
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