RELUCTANT, BUT INEVITABLE: THE RETREAT OF MATRIMONIAL FAULT
| Date | 01 March 1975 |
| Published date | 01 March 1975 |
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01408.x |
| Author | H. A. Finlay |
RELUCTANT, BUT INEVITABLE
:
THE
RETREAT
OF
MATRIMONIAL FAULT
I
THE
antccedents of the Divorce Reform Act 1969 are well enough
known. Its ancestry can be traced directly to the Law Commission
report
Reform
of
the
Grounds
of
Divorce.
The
Field
of
Choice,‘
but that report was itself the culmination of reports, considerations
and legislative attempts all
of
which reflected
a
growing sense
of
uneasiness as to the inadequacy
of
the laws governing divorce and
its
sequelu.
The result was the Divorce Reform Act 1969 and the
substitution
of
the single new ground
of
“
irretrievable breakdown
”
for all previously existing grounds. Revolutionary though this devel-
opment may appear to have been at the time, there
is
little doubt
that some
of
the claims made for it have been a good deal too
sweeping. The following statement made in the Court of Appeal“ is
an example:
“
When Parliament in
1857
introduced divorce by the courts of
law, it based it on the doctrine of the matrimonial offence. This
affected all that followed.
If
a person was the guilty party in a
divorce suit, it went hard with him or her. It affected
so
many
things. The custody
of
the children depended on it.
So
did the
award
of
maintenance,
To
say nothing of the standing
in
society.
So
serious were the consequences that divorce suits were con-
tested at great length and at much cost.
All that is altered, Parliament has decreed:
‘
If
the marriage
has broken down irretrievably, let there be
a
divorce.’ it carries
no stigma, but only sympathy.
It
is
a
misfortune which befalls
both.
No
longer is one guilty and the other innocent.”
This, it will be suggested,
is
to overstate both the philosophy under-
lying the Divorce Reform Act 1969 and its administration, as inter-
preted by the courts-among others, by the Master of the Rolls
himself.’ Since the Act has now been
in
operation for some four
years it may be opportune to examine that philosophy and admin-
1
Cmnd.
3123, 1966,
hereinafter referred to as
Field
of
Choice.
2
The most comprehensive
of
these was the Morton Commission (Royal Commis-
sion on Marriage and Divorce) Report
1951-55,
Cmd.
9678.
Unfortunately it resulted
in
no clear-cut recommendations
of
policy, although
10
of
the Commission’s
19
members favoured major changes.
It
was not until the Report of the Archbishop
of
Canterbury’s Group, published under the title of
Purring
Asunder
in
1966
that the
movement for reform received a decisive new impetus which was given direction by
The
Field
of
Choice.
See MacKenna,
“
Divorce by Consent and Divorce for Break-
down
of
Marriage,”
30
M.L.R.
121,
for an account
of
the major steps towards the
reform
of
1969.
3
Divorce Reform Act
1969.
s.
1.
4
Wachtel
v.
Wachtel
[1973]
Fam.
72.
5
Zbid.,
at p.
89.
Hereinafter called
“
the
1969
Act.”
7
Cf.
Chaprnan
v.
Chaprnan [I9721
3
All E.R.
1089,
and the comments
on
this case,
infra,
under
I11
(c).
Since January
1,
1971,
see Divorce Reform Act
1969,
s.
11 (3).
153
VOL.
38
(2)
2
154
THE
MODERN LAW REVIEW
[Vol.
38
istration. Such an examination of the Act and its companion, the
Matrimonial Proceedings and Property Act
1970,9
it is submitted,
will in fact disclose that
so
far
from the legislation doing away
with matrimonial fault, a dichotomy of interpretation has begun to
emerge.
It will be suggested that of
the
five grounds or
"
facts
"
by which,
and by which alone irretrievable breakdown may be established,
'"
facts (a).l1 (b)
l2
and (c)
l3
are clearly in the nature of fault grounds
and that (d)
l4
and (e)
l5
are breakdown grounds in the sense that
they do not
require,
though they do not necessarily preclude, any
finding of fault. However, thz matter is not as clear-cut as this. In
the first place there are cases involving
a
"
fault ground
"
where the
fault of a party may be overshadowed by the fact that the marriage
has broken down. Such a case, it
is
submitted, would clearly come
within the philosophy behind the Act of allowing dissolution of
marriage in consequence of marriage breakdown. On the other hand
there are indications that even where irretrievable breakdown has
been found to exist, dissolution might be refused,16 not because of
the policy of the law, but because its provisions have been inter-
preted and applied in accordance with traditional methods of adju-
dication derived from a fault-based philosophy that has not yet been
unequivocally discarded.'? Moreover, it will be suggested that in con-
sequential matters
of
ancillary relief, the structure of the legislation
still permits the application of fault-finding procedures, though even
in this context such a result ought to be looked upon as contrary
to
the policy of the law.
The legislation has been aptly characterised as
''
a somewhat un-
easy compromise." One judge has drawn attention to the fact that
Parliament had not yet completely assimilated the law relating
to
marriage with the law of partnership, and that the conduct of the
parties, while no longer occupying its former pre-eminent position,
was still an important factor 19-in accordance, it may be presumed,
with contemporary attitudes. But if, as seems to be the case, those
Hcreinnfter called
"
the
1970
Act." Both the
1969
and the
1970
Acts have now
becn consolidated into the Matrimonial Causes Act
1973
but for the purpose
of
the
present discussion they will continue to be rcferred to as separate statutes.
the respondent.
ably be expected to live with the respondent.
10
Divorce Reform Act
1969,
s.
2 (1).
11
Adultery, coupled with the fact that the petitioner finds it intolerable
to
live with
12
Behaviour
on
the part of the respondent such that the petitioner cannot reason-
13
Desertion for two years.
14
Two
years' separation, plus consent.
15
Five years' separation
sitnplicfter.
16
e.g.,
Ash
v.
Ash
[1972]
Fam.
135;
Richards
v.
Rfchards
[1972] 3
All E.R.
695;
Moicncer
v.
Mouncer
(19721 1
All E.R.
289.
17
Cf..
e.g.,
Brfckell
v.
Brfckell
[1973] 3
All
E.R.
508,
C.A., which makes it clear
that conduct, where it is relevant, includes matrimonial misconduct in the traditional
sense
(at
512,
per
Davies
L.J.).
18
Passingham:
The Divorce Reform Act
1969, Butterworths, p.
2,
para. 4. And
see the criticisms by Bromley:
Family
Law, 4th ed.,
1971,
who foresaw some of the
incongruities that have resulted from the Act;
cf.
Freeman: "The Search for a
Rational Divorce Law
"
(1971)
24
C.L.P.
178.
19
Pheasant
v.
Pheasant
[1972]
Fam.
202, 206,
per
Ormrod
J.
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