THE DIVORCE REFORM ACT 1969

AuthorJennifer Levin
DOIhttp://doi.org/10.1111/j.1468-2230.1970.tb01301.x
Publication Date01 Nov 1970
THE
DIVORCE
REFORM
ACT
1969
THE
basic grounds
of
divorce have not been altered by the legis-
lature since the pashg of
A.
P.
Herbert's Bill in
1987.
Statute law
has remained faithiul to the concept of the matrimonial offence
as
the sole ground for divorce, with the single exception of insanity.
A
small modification of the rigour of the law was made in
1968
with
the relaxation of the law
on
collusion. There has, however, been
considerable judicid development of the law since
1987
with the
result that the breakdown
of
marriage has become an increasingly
important factor
in
divorce cases.
It
seems that the judiciary,
bearing
in
mind
tbe
limitations within which
it
works and noting
certain regrettable Iapses,l has up
to
now
shown
a
more progressive
attitude than the legislature.
In
their a%itude
to
cruelty and collu-
sion and in the exercise of their discretion where
the
petitioner has
committed an offence, the courts have come very close to aban-
doning the idea that divorce is granted to innocent and against
Attempts to chmge the
law
were made by
Mrs.
Eirene White
M.P.
in
1950,
and
Leo
Abse
M.P.
in
1968.
The
Morton
Com-
mission reported
in
1985
with
ten
in favour and nine against the
doctrine of divorce for breakdown of marriage. The Church of
England considered the matter and reported in
1966"
and in
re-
sponse the Law Commission issued
its
survey of the grounds of
divorce which
it
considered were practicable.6 Finally $he Church
and the Law Cormnission arrived at
a
compromise
solution
and
a
Bill embodying this was introduced into Parliament
as
a
private
member's measure in
1967.
This
died
with the dissolution of
Parliament but
a
similar
Bill introduced in
1969,
again by
a
private
member, was passed, the Government ensuring that su5cient
parliamentary time was allotted
to
it.
The Divorce Reform
Ad
received the Royal Assent
on
October
22, 1969
and
is
to come into force
on
January
1, 1971.7
This
delay
is
due
to
the fact that the Government promised, after
a
second
guilty spouses.'
1
Such
as
Perry
v.
Pmy
[1963] 3
All
E.R.
766
(on
ccmetructive
desertion)
and
Williams
v.
Williams
[lW]
54
All
E.R.
614
(on
the
exerehe
of
the
court's
dkcretion).
Also
the
c-8
on
condonation
noted
in
note
48.
2
On
dhy,
Collins
v.
Collins
[196.9]
9
All
E.R.
966; Wvillium
v.
Williums
[lW]
9
All
E.R.
.9!M;
Kell
v.
Kelly
[1966] 1
W.L.R.
152.
On
collueim,
Head
v.
Coc
[1964J
1
All
E.#.
776;
€be
deo
Tumath
v.
Tumath
[1970]
1
All
E.R.
111.
3
Report
of
the
Royd
Commimion
on
Marriage
and
Divorce
1951-1955
(Cmnd.
9678).
4
Putting
Asunder
(8.P.C.K.,
1966).
5
Refom
of
the Grounds
of
Dioorce-The Field
of
Choice
(Cmnd.
3123).
6
[1969]
Ch.
55.
6.
11 (3).
532
Sov.
1970
THE
DIVORCE
REFORM
ACT
1969
683
reading had been given to a private member’s Bill
on
matrimonial
property,8 that the Divorce Reform Act would not be
in
operation
before the law
on
maintenance, and
on
certain
property matters
bad also been reformed. These reforms are now embodied in the
Matrimonial Proceedings and Property
Act
1970.
The Law Com-
mission is at present working
on
more thoroughgoing reform of the
matrimonial propty laws.
As
has been noted, the principle behind the Act represents a
compromise between the views expressed in
Putting Asunder
and
those of the Law Commission.g The Archbishop’s Committee
favoured the substitution of irretrievable breakdown of marriage
instead of the traditional offences as the sole ground for divorce.
They felt that breakdown was a justiciable issue.’O The Law
Commission approved of the Church’s opposition to exclusive
reliance
on
the matrimonial offence, but considered that
it
would
be procedurally impractical, and often undesirable, to require an
inquest in all divorce cases in order
to
prove the breakdown
of
the marriage.” The Commission put forward three proposals
which
it
considered practical and in accord with public feeling
on
the matter, from which a choice could be made by society. Divorce
could be granted (a) solely
on
proof of breakdown without inquest
(i.e.
on
proof of a period of separation which would have
It0
be
short if this were to be the sole ground of divorce), or (b) by con-
sent of the spouses,
or
(c)
on
proof of a period of separation without
regard to fault. The last two grounds would be
combined
with
the existing
offence
grounds for divorce.12 The compromise
embodied in the Act is the adoption of the basic position of the
Archbishop’s Commitke, making breakdown of marriage
the
sole
ground of divorce, but, in order to prove breakdown, the petitioner
must prove either the commission of a matrimonial offence (sdul-
tery,
cruelty,” desertion),
or
that the parties have lived separately
for two years (with consent
to
the decree)
or
five years.
Thus
the
matrimonial offence
or
separation is used as evidence, but not
conclusive evidence, that a marriage has broken down.
A. THE
PROVISIONS
OF
THE
ACT
The
‘(
sole ground
)’
on
which a petition for divorce will
be
granted
is that the
‘(
marriage has broken down irretrievably.”
Is
Break-
down will be held to exist only where the petitioner
(‘
satisfies
8
On
Janury
94
1969,
sponsored
by
Mr.
Edward
Bishop
M.P.
9
For
discussions
of
the.
imw
rW
we
(1967)
30
M.L.R.
180
(Prof.
Kahn-
Frennd),
end
(1967)
30
M.L.R.
Ul
(“Divorce
by
Consent
snd
Divorce for
Beakdown
?,f
Mamage”
by
Sir
B.
Mackenm).
On
the varieties
of
“breakdown
grounds
for
divorce
adopted
in
the
U.S.A.
see
52
Virginia
L.Rev.
32.
10
Putting Aaundez,
para.
62
(a).
11
The
Field
of
Choice,
paras.
58
et
seq.
12
Ibid.,
p.
54.
Is
R.
1.
VOL.
33

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT