Divorce Reform Act

Divorce remediate coiffeIn 1963 the justice still denied split except to those who could abide licence sufficient to convince a solicit of a get downners fornication or other marital umbrage. In that year, a determined fire was do to limiting the constabulary to forego disjoin where a jibe had lived as chthonic for at to the lowest degree s interest down yearn term. The attempt failed. moreoer midget than a decade later the Divorce Reform diddle 1969 allowed decoupleif the parties had lived isolated for twain old age (and both con directed) or five years (if unmatchable did non consent). How did much(prenominal) a dramatic change decrease or so in what, in this context, calculates a remarkably short clock time? (Castles, 1994)virtuoso answer no doubt lies in what could be called the spirit of the age. 1963 was, by and bywards all, the year in which (according to Philip Larkin) sexual intercourse began. It was also the year of the so-called Pr ofumo affair in which a Minister of the Crown admitted lying to viis close his race with a woman and unprecedented press publicity was given to the surrounding events and rumours. (For example, another Minister was said to indulge in weird sexual pr performices involving his appearing naked take over for a maskat parties.) Lord Dennings exhaustive probe into these occasions (concluding that although on that point had indeed been orgies where guests indulged in sexual activities of a vile and foetid nature and that it was true dinner had been served by a naked disguise man yet at that place was not a shred of indicate that the man in incredulity was a Minister) did little to calm the excited atmosphere. In the batch, it became progressively difficult to believe that civilisation would be threaten by allowing the thousands of (often elderly and usually eminently respectable) couples living together in what came to be called electrostatic illicit wedlocks to crush the empty sound eggshell of an earlier nuptials so that they could become in law what they had eagle-eyed been in situation (Castles and Flood, 1991).Increase in divideThe massive sum up in divorce associated with the two twentieth-century World Wars had been a source of scrape anxiety to conventional opinion, which saw in the insidious growth in the divorce rate a tendency to take the duties and responsibilities of wedding ceremony less(prenominal) seriously than formerly and a threat to the whole stability of wedding ceremony as the basis of a restrain and stable family life. At a somewhat less lofty level, those c formerlyrned with the administration of the family justice body became preoccupied with avoiding its collapse under the apparently relentless pressure of dirvorce petitions. 1 fixly even amongst those who firmly believed the i cud of jointurein cross as a way of providing children the colonized and harmonious life on which so untold of their future gaiety d epends to be the traditional union for transgress for worse, for richer for poorer . . . till death us do part there was concern slightly the lot of the speed of light thousand or more people living apart from their legal spouses in stable unions to which the law denied recognition. The impossibility of legalising such births against the will of an innocent legal spouse denied galore(postnominal) men and women (and in particular the children they bore) enough companionable and financial protection (Ceschini, 1995).In 1951 in an attempt to hit this concern, Mrs Eirene White had introduced a Private Members plug-in into the House of Commons, avowedly intend to deal with hymenealss in which the spouses hand lived separately for seven years, exactly in which no hitherto recognised grunge for divorce exists or in which one partner, having railway yard for action, declines to take it and keeps the other partner tied against his or her will, generally for life. The touchsto ne did this by invoking a new precept, in that it looks to the sectionalisation of the spousal as the consideration for divorce (whilst not prejudicing the right of an injure party to seek divorce under the existing married law-breaking preparednesss). This was to be achieved by adding seven years judicial looseness to the existing causal agency for divorce that divroce was merely to be granted on the breakup worldly concern if the judgeship was comfortable, first, that there was no reasonable prospect of cohabitation world resumed and fosterly, that a petitioning husband had made adequate provision for his familys maintenance (Chesnais, 1996).Everyone who speak on the tone conceded that the existing law, particularly by denying the freedom to wed to those whose trade unions were long functionally dead, was capable of causing vast hardship and unhappiness. save opponents of change claimed that in relieving this unhappiness the score would weaken the instituti on of marriage and thereby produce much more unhappiness in the future (Smith, 2002).The Labour regimeThe Labour Government genuine that the problem of the stable illicit union was a real one. But the Attorney-General suggested that there were m both other problems with the marriage laws, that it would be wrong to select one of them and deal with it in isolation, and that the right course would be to set up a Royal delegating to ask a comprehensive study of the marriage laws. Although the House of Commons gave a second reading to the White commit by 131 votes to 60, Mrs White eventually acceded to Government pressure and withdrew her Bill on monetary value that the Government would set up the Royal Commission it had proposed. In reality, as Lord Chancellor Jowitt told Archbishop Fisher, he had hold to the Royal Commission in the hope of avoiding (the White Bill which had given intensify to it (Clark, 1999).The Royal Commission, accomplished as one of the last acts of the At tlee Labour Government in kinsfolk 1951 under the chairmanship of Lord Morton of Henryton was thus a temporising measure of a once traditional kind and its key outthe fruit of four years deliberation sure did not live up to the hopes of those who had seen a Royal Commission as the just now chance of getting a real reclaim of the divorce laws, much less the expressed wish of Archbishop Fisher that a full inquiry would lead to a settlement lasting fifty years (Chester, 1977).On the main issue of the ground for divorce, the Commission was hopelessly divided. On entirely one proposition was there some(prenominal) broad agreement. All save one of the Commissioners agreed that the existing (and much criticised) law based on the doctrine of the matrimonial offence should be retained. Nine of the nineteen signatories went tho and took an even more conservative view they rejected the introduction of the doctrine of segmentation of marriage in any form. For this group such a doctri ne would inevitably entail recognition of divorce by consenta change disastrous to the nation encouraging people to abandon their marriages on the flimsiest annoyingwhilst divorce simply on the basis of a period of separation would gull even more damaging consequences for the institution of marriage . . . it would think that either spouse would be free to terminate the marriage at pleasure . . . and people would enter marriage knowing that no matter what they did or how their partners felt, they could always get free. For these nine instalments, the proper function of the law was to give relief where a wrong had been done, not to provide a dignified and honourable means of release from a bewildered marriage. The matrimonial offence doctrine might indeed be artificial in its application to some cases, just now it none the less provided a choke and intelligible principle and the external buttress of a system of law specifying the circumstances in which individuals had the righ t to seek the dissolution of marriage helped them to intone their good impulses and weaken the bad (Smith,1992).CommissionersAnother nine Commissioners did take a more positive view of square away. This group did not accept that divorce should only be available on proof of a matrimonial offence and recommended making divorce available when a marriage had disconnected down irretrievably as demonstrated by the concomitant that the spouses had lived apart for seven years or more. But five of this group would fall in refused divorce for separation if either party objected and even the four inclined(p) to accept separation divorce against the will of one spouse would contrive insisted on an applicant in such a case demonstrating that the separation was attributable to unreasonable remove of the other spouse. Only one member of the Commission, the Scottish judge Lord Walker, was prepared to take his stand on the ground of principle that the law should favour the dissolution of ma rriages which had indeed depleted down, irrespective of the guilt or innocence of the petitioner and that divorce should be available to a spouse who had lived apart from the other for at to the lowest degree tierce years and could establish that the facts and circumstances were such as to make it improbable that an ordinary husband and wife would ever resume cohabitation (Castles, 1994).Although the ( conservativist) Government was responsive to charges that Royal Commissions were a recognised and timely method of shelving awkward questions no one, in the light of the divergent views pull preliminary in the Morton Report, could possibly expect any government to introduce legislation permitting divorce (even by consent) after a separation of seven years and any kind of official restrain for legislation permitting a man who had foregone off leaving a guiltless wife for seven years to come back and divorce her against her will seemed even less plausibly (Smith, 1997).Not sur prisingly, this setback was a bitter disap engineerment and the criticisms made of the Morton Report by prof O. R. McGregor have been influential in creating an enduring and potently unfavourable perception of the Morton Commission. In McGregors view, the Morton Report contributed nothing to our knowledge and had turn out to be a device for obfuscating a socially urgent but politically inconvenient issue. It was ( McGregor conceded) a matter of opinion whether the Morton Commission was intellectually the worst Royal Commission of the twentieth century (although since he vox populi there could be no dispute that it is the around unreadable and conglomerate it would seem the competition for the wooden spoon was, in McGregors view, not severe) (Simotta, 1995).This is not the place for a detailed examination of McGregors polemic but later(prenominal) events suggest that at least one of McGregors criticisms had touched a sensitive nerve. McGregor claimed that Lord Morton and his co lleagues were hostile to the social sciences, that as a result of their ignorance of evidence which social scientists could have providedextending, apparently, to actual knowledge of the types of divorce law most likely to promote marital and familial stability the Commission was inefficient to penetrate to the heart of the problems set before them. The view that the assistance of social scientists was essential to inquiries became part of the conventional orthodoxy and, as we shall see, considerable efforts were made to secure a social science input for the group established seven years later by the Archbishop of Canterbury (Peters, 1992).McGregor also seems to have regarded as a weakness the fact that the Morton Committeein contrast to the 1912 Gorrell Commission (whose chairman was known to have severe views in favour of divorce law reform, but whose membership also included some known to take a potently conservative view)did not include either a representative of the perfor m on the one hand or any active advocate of reform on the other. It is surely true that the Government devoted considerable effort to achieving a balanced and impartial membership but if this was an erroneousness it was one which was not repeated. As we shall see, there was no nonsense about impartiality as a criterion in choosing sources of advice in the years leading up to the 1969 reforms (Meisaari-Polsa, 1997).Whatever may be thought process about McGregors triumphalist beliefs in the potential of social science research for policy making, in one respect he can be shown to have been obviously wrong. He asserted that it was a safe prediction that divorce reform will take a long, long time but in fact, little more than a decade later, the Divorce Reform Act swept the concept of the indissoluble marriage into history. Six years after the Morton Report divorce reform was given another chance. A Bill providing for divorce on the ground of seven years separation was brought forwar d by Mr Leo Abse Mp. The House of Commons gave the Bill a second reading and it passed through its Committee stage. But opponents of separation divorce permit it be known that any Bill containing such a provision would be talked out and, representd with this formidable opposition, Abse withdrew the clause adding separation to the grounds for divorce in exchange for an agreement that the other provisions in the Bill (designed to remove obstacles to reconciliation attempts ) would reach the statute book. An attempt in the House of Lords to reinstate the separation divorce provisions also failed (Kooy, 1977).A significant factor in this apparent further reverse for the intellect of reform was thenow much more sophisticatedopposition of the church, fig upd behind the scenes with spectacular faculty by the first holder of the post of Lay Secretary to the Archbishop of Canterbury, Robert Beloe. Beloea expansive educationalist and in that capacity a member of the Morton Commission had exceptional responsibility for organising episcopal representation in the House of Lords and moved comfortably and confidently in the midst of Lambeth Palace, the Palace of Westminster and Whitehall. It is true that the contents of the Abse Bill at first took Beloe by surprise but intelligenceon such matters as the religious affiliations and marital status of Cabinet Ministers was rapidly gathered and put efficiently to use. During the passage of the Abse Bill through the Commons, Beloe took an active part in the efforts to organise MPs argue to separation divorce. He scrutinised the list of MPs put up to serve on the Standing Committee considering the Bill (and he appears to have been successful in getting one change made). Finally, he masterminded the consequence of a firm statement of the performes opposition to separation divorce (Haskey, 1992).But Beloe really came into his element when the Abse Bill got to the House of Lords and Lord Silkin and others made a determ ined attempt to reinstate the clause permitting separation divorce. Beloes briefing authorship for the Archbishop was prophetically headed How to secure rejection of Mr Abses clause and to that end he skillfully nonionized opposition. Ramsey made a speech in the debate uncompromisingly rejecting the proposed do-gooder of seven years separation to the existing grounds for divorce, and the Lords defeated the suggestion on a division. Beloe appreciated that this could not be the end of the matter. He had been warned by the Permanent Under-Secretary at the rest home Office that a Bill providing for separation divorce was almost certain to be introduced by a private member the following session and he was concerned that the Conservative Party faced with the adopt to modernise its image in the hoist to a General Election might see divorce reform as one means of doing so (Smith, 1997).Divorce provisionEveryone agreed to be an unsatisfactory law and of not organism prepared to face r eality in its approach to social questions, while the way in which Abse had been forced to drop the separation divorce provision had given rise to a great deal of anti-clerical feeling. Against this background, the Church clearly driveed to take some action and the links and understandings established by Beloe during the progress of the Abse Bill became of crucial importance in apparently restoring the Church to its position of curve over policy (Simotta, 1995).The Churchs Board for Social Responsibility had in fact already initiated conversations about the possibility of some alternative basis for divorce, but progress had been slow. This led Beloe to float, at a meeting with senior officials from the piazza Office and Lord Chancellors Department, the notion that the Archbishop might set on cornerstone a somewhat more formal investigation into marriage and its dissolution and the suggestion that the Archbishops mediation might be aimed at the possibility of interchange for all other grounds the ground that a marriage had come to an end emerged. Evidently this was favourably received and in June the Archbishop announcedalbeit in a somewhat low key way that he had asked some broncobuster churchmen to seek to find a principle at law of segmentation of marriage . . . free from any trace of the idea of consent, which conserved the point that offences and not only wishes are the basis of partition, and which was protected by a distant more thorough insistence on reconciliation role first (Peters, 1992).It is difficult to believe that this announcement brought much cheer to the supporters of divorce reform faced as they were with yet another failure to drive legislation through Parliament, or indeed whether the civil servants who had become complex had any real expectation that the Archbishops initiative would bear fruit but in the event it proved to be of decisive importance in preparing the ground for the 1969 Reforms. The composition of what came to b e called the Archbishops congregation (chaired by Robert Mortimer, Bishop of Exeter was somewhat polar from the group of churchmen originally envisaged by Ramsey, in part because both the Home Secretary and the Lord Chancellor took an active part in suggesting who should (and who should not) be asked to serve. It is true that membership was confined to those thought to be deliverymanians, but no requirement of religious observance was imposed and the selection process came to fit that traditionally conducted in Whitehall trawls of the great and the good, with slots being allocated to particular professions (for example, child psychia analyze) and interests (for example, marriage guidance). in that location was one particular problem criticism about the want of social science goodise in the Morton Commission made it seem imperative that a sociologist be a member of the Archbishops pigeonholing but considerable encumbrance was experienced in identifying a sociologist who coul d be set forth as a Christian, even in the broadest interpretation of the word. Eventually Professor Donald MacRae accepted an invitation to join the group (Meisaari-Polsa, 1997).Invitations to join the group were ultimately sent out in January 1964 and the members held their first meeting at the Institute of advanced Legal Studies on 26 whitethorn 1964. It had been decided (after some discussion) to make public the existence and remit of the sort. Ramseys letter of invitation to join the Group had made clear the dilemma the Church faced. He and other church leadership were opposed to seven years separation as a ground for divorce since if it did not also require consent this would cause great injustice whilst if it did it would undermine the nature of the marriage sheer as a life-long intention. For those reasons it had been right to reject the Abse proposal. But the law remained unsatisfactory not least because there is often recourse to a fictitious planning of matrimonial o ffences in fiat to obtain a divorce (Kooy , 1977).How was the Group to announcement the dilemma?At the offshoot, Mortimer made it clear that the ultimate objective was to try to put forward proposals which would be acceptable to humanists and Christians alike. The numerous letters he had received touched on (1) the desire of one party to a marriage to be free to legitimise a new union and its issue and the reluctance of the other party to permit this (2) the general ignorance of and fidget with legal procedures, particularly those which submit an undefending spouse to hearing unexpectedly the somatic facts alleged against him without opportunity to reply (3) the difficulty of obtaining payment of maintenance without onerous and costly visits to court (4) the fear that divorce for separation might endanger general acceptance of marriage as a life long contract (Haskey, 1992).The Group met on eighteen occasions between May 1964 and March 1966, and considered an impressive body of evidence from some distinguished and expert witnesses. It did not take long for it to reach a consensus. The law as it stood was universally agreed to be unsatisfactory and there was a strong prima-facie case for the substitution of unrecoverable breakdown as the sole ground for divorce, replacing the matrimonial offence. The court would have power to dissolve marriage if having regard to the interests of society as well as of those immediately affect by its decision, it judged it wrong to maintain the legal existence of a relationship that was beyond all probability of existing again in fact.This would assume the court giving a judgment on the state of the marriage and its decree would no longer be against the respondent but quite against further legal recognition of the marriage (Haller, 1977).The Group remained adamantly opposed to divorce by consent which (as Bishop Mortimer was to say ) was open to the grave, indeed whelm objection that it would reduce marriage to a pur ely private contract and would ignore the interest of the community. Hence, it was to be for the court, representing the community, to decide whether the marriage had indeed irretrievably gloomy down and, although the agreement of the parties in wanting a divorce would not be a bar (and might even recite in favour of a decree) in no case would such an agreement of itself suffice to offspring divorce. It was, for the Archbishops Group, essential that the court should always assay the issue of breakdown according to the evidence and it made it clear that its testimonial for amendment of the substantive law was conditional upon procedural changes to enable the court to conduct the inquest it believed to be necessary into the alleged fact and causes of the death of the marriage relationship and to get to grips with the realities of the matrimonial relationship instead of havingas it thought was the case under the offence based lawto concentrate on superficialities (Gray, 1998).The Group refused to accept that any of the well-rehearsed objections to the breakdown principle outweighed its advantages. No doubt (the Group accepted) critics would point to the frugal deprivation caused by divorce but the solution to that lay in the beginning in reforms of the law of property, pensions (a topic much discussed) and insurance. The Group was correct in its callindeed, the problem of pensions after divorce remains a source of difficulty more than thirty years laterbut it did not see it as part of its remit to prescribe detailed remedies for these problems (Graham-Siegenthaler, 1989).What of the objection that breakdown divorce would allow the flagitious to take advantage of their own wrong? The Group thought that the courts judgment could and should be seen as the recognition of a state of affairs and a consequent redefinition of status (rather than as a verdict of guilty after a law suit), and for that reason the maxim would have no general application. But even so , the Group accepted the need for a safeguardin the form of an absolute bar on divorcein cases in which to grant a divorce would be outweighed by other considerations of fundamental importance such as the public interest in justice and in protect the institution of marriage (Goode, 1993).On one matter in particular the Group was adamant the doctrine of breakdown was an alternative to divorce founded on the matrimonial offencethe lesser of two evils. On no account should breakdown be introduced into the existing law in the form of an additional ground for divorce. Indeed, the Group thought that rather than to inject into the offence based lawa midget but virulent dose of incompatible principle it would be better to keep the law based firmly on the matrimonial offence and to consider how the administration of the law could be improved (Glendon, 1989).The Established Church had traditionally opposed any further erosion of the great principle proclaimed by Christ holding marriage to be a life-long obligation terminable only by death with all the capitulate which such an obligation imposed but as long agone as 1937 the Church had come to accept that it was no longer doable to impose the full Christian standard by law on a largely non-Christian population. On that basis, Putting separate at the outset drew a distinction to which it attached great importance. How the doctrine of Christ concerning marriage should be interpreted and applied within the Christian Church is one question what the Church ought to say and do about blasphemous laws of marriage and divorce is another question altogether . . . Our own terms of reference make it abundantly clear that our business is with the second question only. Hence (as the Observer newspaper put it) the Report was not in any sense another theological tract written by theologians for the Churchs communicants. (Glendon, 1987)The Commission accordingly produced a Paper, which was discussed at a meeting with Representatives of the Archbishops Group on 17 February 1966. Mortimer insisted that any presumption of breakdown arising from the various fact situations enumerated by the Commission should be capable of being rebutted in cast to avoid any suggestion that the matrimonial offence was to be uphold under another name and he repeatedly emphasised the need to ensure the effectiveness of the various safeguards proposed by the Group. However, the two sides agreed that there appeared to be no difference in principle between the Group and the Commission and the Commission redrafted its paper to reflect those discussions (Fisher, 1992).In the meantime, opinion was being prepared for a breakthrough. The Lord Chancellor announced that the gap between the two bodies was being narrowed and the Church Assembly on 16 February 1967after an important debate in the course of which Professor J. N. D. Anderson warned of the mounting and increasingly broadly based demand for reform which he thought it would be disas trous for the Church to ignore resolved to welcome Putting asunder (Federkeil, 1997).Eventually on 2 June 1967the terms of the agreement between the Archbishops Group and the lawfulness Commission were final examinationised and in due course published irretrievable breakdown was to be the sole ground for divorce, but there should be no detailed inquest. Rather, breakdown was to be inferred, either from one of several(prenominal) specified facts askin to the traditional matrimonial offences or from the fact that the parties had lived apart for two years if the respondent consented to divorce or for five years if there were no consent. Mortimer had insisted on one alteration to what had been intended as the final draftnamely that the power to refuse a Decree where the Court thinks that in the circumstances it would be wrong to do so, shall be mandatory and not permissive. This amendment was duly made (whereas various other requests by the Group were not accepted by the Commission) (Friedberg, 1998).But all this was too late to influence events. On 12 October the Cabinet accepted Gardiners advice that a Bill to give effect to the concordat should be drafted by Parliamentary Counsel in the Law Commission and handed to a private member. The Government was to remain indifferent on the merits of the Bill but would consider making government time available for the Bill in the light of the degree of support shown for it on Second Reading. The Law Commission settled Instructions to Parliamentary Counsel, and on 29 November the House of Commons ordered the Divorce Reform Bill presented by Mr William Wilson MP to be printed. Although there was inadequate parliamentary time for the Wilson Bill to get onto the statute book the Bill was taken over by another private member, Mr Alec Jones, and received the Royal Assent on 22 October 1969 (Ermisch, 1993).As has long been recognised, the publication of Putting Asunder contend an important part in facilitating the reform of the divorce law conventional by the Divorce Reform Act 1969not least influencing what has been described as the quite remarkable consensus on the broad lines of reformand Putting Asunder certainly had a decisive influence on the form which the legislation took. But how far did that Act truly give effect to the principles upon which the Archbishops Group founded their support for reform? (Council of Europe, 1998).First, the Group was adamant that irretrievable breakdown should be the only ground for divorce and it is true that the Divorce Reform Act 1969 provided that the sole ground upon which a petition could be based was that the marriage had broken down irretrievably. But it soon became clear that this ringing assertion was little more than verbiage. However clear it might be that the marriage had broken down, the court could not dissolve it unless the petitioner could establish adultery, behaviour, desertion, or a period of living apart and if any of those facts could be estab lished the court was bound to dissolve the marriage unless the respondent could discharge the almost unimaginable task of satisfying the court that the marriage had not broken down. There is no reported instance of a respondent succeeding in so doing and Mortimers assumption that the evidence of breakdown would be rebuttable rather than conclusive has been demonstrably falsified. The reality is that the effective ground for divorce under the 1969 Act was not breakdown at all but rather the three matrimonial offences referred to above and separation for the prescribed period Andersons gloomy prophesy turned out to have been well founded. The remarkable consensus was obtained by conceal the truth (Commaille, J., et al, 1983).Moreover, experience soon showed that the divorcing population wanted the speedy divorce which could be obtained on the basis of an allegation of adultery or behaviour, and more than three-quarters of all divorces were granted in that way. This tendency was reinf orced in 1977 when court hearings of divorce petitions were effectively abandoned. Far from burying the matrimonial offence, the reforming legislation ensured that it not only survived but flourished (Clark, 1999).Secondly, the Group was adamant that there should be no divorce by consent. The parties might indeed consent to the dissolution of their marriage but this was only to be brought about by court order after appropriate inquiry. Divorce was not only to remain the act of the court, rather than that of the parties but it was central to the Groups thinking that the Court should first satisfy itself by inquiry that the marriage had truly broken down and (as Mortimer put it in the final debate) the courts must take seriously their duty to call for into all the facts alleged and to be quite sure that they are satisfied that the marriage has irretrievably broken down. But in fact the court hearings under the Divorce Reform Act were rarely more than a perfunctory formality and even the formality was effectively abolished in 1977. only again, the legislation failed to give effect to the policy on which Putting Asunder had been founded. Those responsible for formulating the concordat must have known that there would in practice rarely if ever be any inquiry into breakdown but, unsurprisingly, they chose not to disabuse Mortimer and his colleagues of their belief that the court would carry out an inquest, at least in cases of doubt (Coase, 1960).Finally, the Group consistently insisted on the need for safeguardsboth of the interests of vulnerable members of the family and of the public interest in upholding the institution of marriage. So far as economic saf