JUDICIAL HEARINGS OF UNDEFENDED DIVORCE PETITIONS*
| Author | Jane Fuller,Elizabeth Elston,Mervyn Murch |
| Date | 01 November 1975 |
| Published date | 01 November 1975 |
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01433.x |
THE
MODERN
LAW
REVIEW
-
__
Volume
38
November
1975
No.
6
JUDICIAL HEARINGS OF UNDEFENDED
DIVORCE PETITIONS
*
PROPOSALS
to create
a
unified system
of
local family courts received
their latest and most emphatic endorsement with the publication
of
the Finer Report in July 1974.‘ This aims
‘‘
to establish
a
family
court and a family law which will command the confidence and
respect of the whole community.” The inefficiencies, inconsistencies
and short-comings
of
the domestic jurisdiction
of
magistratgs’
courts are well known2 and have been thoroughly exposed once
more by the Finer Committee. However, in their rgview
of
the
present divorce jurisdiction they stated that:
“We know of no serious criticism which is now directed to
the divorce jurisdiction other than
in
such matters as the cost
of litigation, which affect the administration
of
the law as
a
whole.”
It
is probable that they reached this conclusion only because the
county courts, which deal with the vast bulk
of
divorce, have
evaded thg scrutiny
of
socio-legal research unlike the domestic
jurisdiction
of
the magistrates’ court.
In this article, using material from a study of three local county
courts made in 1973, we examine the rationale for judicial hearings
of undefended divorce petitions. These take up an increasingly
substantial proportion of county court time. For example, the
number of days recorders or circuit judges sat in court hearing
undefended petitions increased from 3,468 in 1971
to
5,115 in 1973,
a rise
of
51 per cent. The volume
of
petitions increased from 74,288
to 116,376,
a
corresponding rise
of
56 per cent.4 In the light of
our research findings we seriously question whether such hearings
command the confidence and respect
of
the petitioners themselves.
We also question whether, in issues where there is seldom any legal
~~~~ ~~ ~~
*
This article is part
of
a larger research project entitled “The Circumstances
of
Families in Divorce Proceedings.”
It
is funded by the Social Science Research
Council.
We
would like
to
thank Grace Yarnall for her invaluable help with the
court observation study.
1
Report
of
the committee on One-Parent Families, Cmnd. 5629,
H.M.S.O.
1974.
2
Blom-Cooper,
L.,
McGregor,
0.
R., Gibson, C.
Separated Spouses,
Duckworth,
1970.
.
.
..
Finer Report, para. 4, 424.
4
Civil Judicial Statistics 1973. Cmnd. 5756, pp. 44 and 48.
609
VOL.
38
(6)
1.
610
THE
MODERN
LAW
REVJEW
pol.
38
dispute, the traditional adversary procedure is the most appropriate.
efficient and economic way of granting decrees and adjudicating on
the matters that result from broken marriage.
In
1966
the Law Commission expressed the view that the objec-
tive of
a
good divorce law should be to afford dead marriages
“
a
decent burial
”
in such
a
way as to ensure
“
the maximum fairness
and the minimum bitterness, distress and humiliation.” They recog-
nised that when parents of dependent children divorce, both often
wish, and need to continue, to play an effective rola in their child-
ren’s lives. Thus they concluded that
a
second objective of divorce
law should be
“
to encourage harmonious relationships between the
parties and their children in the future.”5 Therefore, when we
planned
a
wide ranging study of families caught up in divorce pro-
ceedings, we thought it important to see whether divorcing parents
themselves thought the procedures used in the county courts
achieved the Law Commission’s objectives, particularly as these
courts deal with over
95
per cent.
of
all divorce petitions. Although
we wished to observe the functioning
of
the courts independently
ourselves,
we
particularly wanted to record the petitioners’ own
impressions
of
their experience in court. We believe that the views
of
those on the receiving end
of
the judicial machinery have their
own
validity and are often significantly different from the more
commonly expressed opinions of the practitioners who work within
the system.
As
J.
H.
Farrar writes:
“For too long law reform has been carried out on the basis
of
Q
priori
assertions
or
intuitive assessments of social facts and
social consequences by lawyers.”
*
In the past, consumers of our system of justice have had little
chance to voice their opinions and criticisms in
a
sufficiently accept-
able way to have
a
direct influence on policy and legal practice. It
is not surprising, therefore, if they shsuld feel the legal machinery
is unresponsive and insensitive to their needs. Suggestions
or
criti-
cisms from the lay person concerning legal practice and procedure
can too easily be dismissed as resulting from either an ignorance
of legal matters or from an over-emotional sense of grievance. The
mystifying effect of legal language and complexity may also serve
to protect the system from consumer complaint.
It
is
only compara-
tively recently that the views of the public have been lent credence
by socio-legal research.’ Thus the research we report in this article,
exploratory though it is, is one
of
the first studies to record systema-
tically the views of parties who appear before civil courts.
We begin with a short description of the way in which the
6
Law Commission Paper
No.
6
“
Reform
of
the Grounds
of
Divorce:-The
Field
of
Choice.” Cmnd.
3123,
para.
15.
6
J.
H.
Farrar,
Law
Reform
and
the
Law
Commission,
p. 78. Sweet
&
Maxwell,
1974.
1
See, for example, Hall J.
C.,
Law Commission Working Paper
No.
15,
1968,
Blom-Cooper, McGregor and Gibson
op.
cit.,
and work
of
the Institute of Judicial
Administration, University of Birmingham.
NOV.
19751
JUDICIAL
HEARINGS
OF
UNDEFENDED DIVORCES
611
research was carried out, followed
by
a
summary
of
a
typical
un-
defended divorce hearing. We then go on to describe the petitioner
view
of
these hearings and conclude with
a
discussion of the main
issues raised.
A
DESCRIPTION
OF
THE
METHODS USED
IN
THE
RESEARCH
All morning sittings in three courts, A,
€3
and
C,
were attended by
two members
of
the research group from January to June
1973
inclusive."
A
total of
763
completed undefended cases were heard.
As
well as recording the evidence given about the circumstances of
the marriage and the children of the family, details about the con-
duct of each case were noted. This included information about
type of representative, the witnesses who were called, the number
and type of questions asked by the individual judges, and the type
of orders that were asked for and made. The length of time each
case took was measured to the nearest minute.
Of the
763
cases,
117
involved childless marriages and
a
further
176
were marriages where the children were no longer dependent
and where the court consequently had no responsibility to be satis-
fied about their welfare. Thus there were
470
cases with children
under
16
or receiving further education
or
training.
As
one of the
purposes of our research was to look at arrangements for children
and at the effect
of
divorce upon families, as well as to study the
petitioners' views of the legal machinery, we limited our follow-up
interviews to petitioners falling within this group, taking a random
sample of one in three.e The interviews were tape recorded, on
average lasted two-and-a-half hours and in most instances took
place in the homes of the petitioners. They were asked about their
contact with solicitors, the preparatory stages
of
the divorce, the
decree nisi hearing, legal aid and costs, and the effects of the marital
breakdown on themselves and their children.
SUMMARY
OF
PROCEDURE
IN
UNDEFENDED CASES
If
agreement can be reached on custody of children and ancillary
matters
(i.e.
property and maintenance) as well as on the divorce
itself, the court hearing of the petition will normally be the only
hearing at which either one or both parties attends (and often, the
parties themselves do not attend the hearing of adjourned matters).
The proceedings in the three courts we observed varied in detail but
broadly speaking took the following form. Unlike chambers hear-
ings, to which unsettled
or
disputed ancillary matters may be
adjourned, the hearing of the petition for the decree nisi is held
8
Our attendance at court was initially made necessary because the Lord Chani
cellor at the time refused
to
let us have any access to court records. He would,
however, allow
us
to
sit
in court and take down petitioners' names and addresses.
9
A
letter was finally sent
to
145
petitioners and
of
these
102
talked with us
about their divorce proceedings.
13
petitioners could
not
be traced and a further
30
refused
to
be involved.
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