A divorce is commonly discussed to as a single event. In reality, however, it is many procedures. To illustrate this one may highlight the parties decision to divorce, a divorce petition, the obtaining of a decree nisi and absolute, ancillary relief and the property related consequences of breakdown and, where children are present, arrangements to settle residence, as separate stages in ‘a divorce’.
As in many western countries, marriage in England is a weakening institute. The modern law of marriage dates from Lord Hardwicke's Act of 1753. The modern law of divorce came a century later. There was no civil law of divorce in England and Wales until 1858. Prior to that, divorce was a bulky and expensive set of processes, one of which involved conducting through a private Act. Initially, divorce laws was for men, only in 1923 were women given the same theoretical rights to divorce as men. The absence of legal aid until 1950 meant that access to divorce processes was narrow. This absence had an especially obvious effect on women. The number of divorces rose during World War and increased rapidly in the 1950s. This rise was particularly attributable to the new facility of subsidized legal assistance.
The enormous social changes following the Second World War led to much public discussion of the whole basis of the law of divorce. Fault based divorce law began to be subject to increasing criticism as couples wishing to divorce without waiting for a three year desertion period manufactured adultery grounds by providing proof of adultery even if no adultery had actually been committed. Challengers of the fault based principle argued that both parties were usually to blame to some degree that courts could not accurately apportion blame and the matrimonial offences were symptoms rather than causes of breakdown. It was further argued that Christian notions of the indissolubility of marriage were inappropriate in an increasingly secular society. These arguments have surprizing significance with those advanced in favour of no fault divorce today.
The first legislative attempt to give effect to those arguments was a Private Member's Bill introduced in the 1950/51 session by Eirene White which sought to allow divorce on the grounds of seven years separation even if one party objected. The measure was controversial and did not have Government backing. It was withdrawn and a Royal Commission on Marriage and Divorce (the Morton Commission) was set up which reported in 1956 the fundamental question which the Commission was primarily set up to consider is, the grounds upon which there should be divorce, whether or not an irretrievable breakdown of a marriage should be a ground for divorce, in addition to the existing grounds. The particular point which the Commission considered was naturally based upon the Bill put forward by Mrs. Eirene White, which was based upon the view that if the parties had been separated and living apart for seven years or more that should be, automatically, a ground for divorce, in addition to any other grounds that may be available.
The battle for divorce reform which subject the family law debate during the latter part of the 20th century appears to have been abandoned, along with the conclusion in 2001 by Lord Irvine of Lairg, the then Lord Chancellor, not to bring into force the major modifications to divorce law contained in Part II of the Family Law Act 1996, Which was the concept of “no fault divorce”, as in the Morton Commission report. In this course work it will discuss whether the concept of ‘no fault divorce’ as advocated by Royal Commission of Marriage and Divorce has been achieved in practice, first it will discuss the history of no fault divorce in England and Wales.
No-Fault Concept (History)
Although The ‘Morton Commission’ report had no real influence. In 1963 Leo Abse introduced a Bill pursuing to facilitate reconciliation between estranged