Protecting Privacy in Divorce Actions: Article 8 and the Need for Law Reform
Published date | 01 September 2019 |
Pages | 332-359 |
DOI | 10.3366/elr.2019.0572 |
Date | 01 September 2019 |
Author |
The role of divorce in society and the allied challenge of law reform in this area constitutes one of the most contentious areas of family law and adult relationships. Whether divorce should be a vehicle for upholding the institution of marriage and punishing fault, or a means to allow a couple to retreat gracefully from their broken marriage, mark opposite ends of the divorce spectrum. Society's position has shifted along this spectrum over time, yet the two ends remain much as they ever were: with conservatives arguing that any liberalisation of divorce laws jeopardises the institution of marriage and imperils society; and progressive camps contending that divorce law is not there to prevent a marriage from failing, but to provide a dignified exit from an already-failed relationship.
These grounds [for divorce] have entered or re-entered the European stage at various moments in history and under the influence of various circumstances and ideas, and so could be characterised as different generations of divorce law. The fault divorce (in other words, divorce as a sanction) came into play during the Protestant Reformation under the influence of Reformed theology, while irretrievable breakdown of the marriage (in other words, divorce as a remedy of failure) and mutual consent (in other words, divorce as an autonomous decision by the spouses themselves) developed on the eve of and during the French Revolution under the influence of the Enlightenment, and divorce on demand (in other words, divorce as an individual right) appeared after the Russian Revolution of 1917 as a result of the radical secularisation and de-ideologisation of marriage. These grounds are products of different epochs, and all are simultaneously present in contemporary Europe. Moreover, they all exist in many jurisdictions alongside or in combination with one another.
Scotland is one such jurisdiction. While fault-based grounds remain, they sit alongside the more neutral fact of non-cohabitation for a period of time. Moreover, the reality of litigation means that Scots law has, in effect, divorce by consent in cases where the spouses are prepared to cooperate, for example by not defending the action. While there is a case for reform of divorce law on the substantive merits alone,
Before turning to this argument, three critical points must be made. The first is to emphasise that the argument I seek to make here, advocating for divorce law reform on the basis of privacy rights under article 8, is distinct from the case for reform (or not) based on the substantive merits of fault and no-fault divorce. The campaign for divorce law reform has gathered pace in England and Wales in the last two years, prompted by growing concern amongst practitioners and the judiciary that the current law promotes antagonism and conflict, rather than seeking the most constructive exit from the marriage.
Secondly, although disclosure of financial information is often part and parcel of a divorce hearing to allow the judge to make an award regarding financial provision, and child contact issues may also raise their head, the focus here is exclusively on the mechanics of obtaining a divorce, and the personal information required to be disclosed to secure that. Financial provision and child contact are secondary issues (albeit often of equal or greater concern to the parties), which are not directly relevant to the decree of divorce, and are therefore excluded from this analysis. Any information which is required to be disclosed in pursuit of financial provision or child contact is separate from the question of what should be disclosed to obtain the divorce itself.
My third and final preliminary point is to emphasise that the privacy arguments advanced here are not intended to encourage a culture of marital secrecy or to require abusive and harmful behaviour to stay behind closed doors. For too long, the legal emphasis on privacy in family life led to a refusal on the part of the Government to recognise domestic abuse, child abuse, or marital rape: respect for family privacy resulted in non-intervention and enabled abuse to continue.
There are two grounds for divorce in Scotland: the irretrievable breakdown of the marriage, and the issue of an interim gender recognition certificate.
That is a clear indication that the legislature considered desertion to be a separate ground upon which irretrievable breakdown of marriage could be established. If desertion was a separate ground then so too were, and are, adultery, unreasonable behaviour and the periods of non-cohabitation.
In contrast, the English legislation refers to the five “facts” by which irretrievable breakdown can be established. The terminology adopted in this article will reflect these positions, referring to any of the four or five bases for establishing irretrievable breakdown as “grounds” or “facts”. Thus, in Scotland, the four grounds for irretrievable breakdown set out in the 1976 Act are:
1(2) The irretrievable breakdown of a marriage shall, subject to the following provisions of this Act, be taken to be established in an action for divorce if—
since the date of the marriage the defender has committed adultery; or
since the date of the marriage the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit...
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