Family Law – Summative Assessment
CURRENT LAW
Currently the divorce law in England and Wales operates a fault-based system whereby the court grants a divorce if a person can prove that their marriage has broken down. The break down in the marriage can only be due to one of the following five reasons – adultery, unreasonable behaviour, desertion after two years, two years' separation with consent or five years' separation without consent. These requirements were established in the case of Buffery v Buffery [1988] 2 FLR 365.
The procedure requires the petitioner to file a divorce petition to the court listing one or more of these reasons for divorce. Upon agreement of the petition grounds or the courts satisfaction that a divorce should be granted, a decree nisi will be drafted. Six weeks following this, the decree absolute is then issued, legally dissolving the marriage.
A no fault divorce is when neither party is at fault; it is “a quick legal separation without blame” as stated by Sir Nicholas Wall, president of the high court's family division (1). The notion of No-fault divorce was incorporated in Part 2 of The Family Law Act 1996; however, the act never came into power and was later repealed. England and Wales operate a fault based divorce system under which the only ground with a no fault element is the ground of two years separation with consent.
However, the cuts to legal aid along with the budget reductions for the court service may result in amplified number of people attempting to acquire divorce without legal representation. This may cause the government to re-evaluate the current divorce system in order to reduce the pressure on courts.
A key problem with the current divorce law is that if a couple has simply fallen o...
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...pted. It is of the popular view that a no-fault divorce option should be made available in England and Wales. However, it should be subject to certain criteria for example a mutual agreement between both parties to end the marriage after sessions of counselling or the reference of a medical member (doctor/psychiatrist) for people in an abusive relationship.
Bibliography
Primary Sources
Family Law (Law Express) 2th edition, by Jonathon Herring, published by Pearson Education Limited 2009
Family Law Key Cases, by Helen L. Conway, edited by Jacqueline Martin & Chris Turner, Published by Routledge 2013
Secondary Sources
1. http://www.theguardian.com/law/2012/mar/27/no-fault-divorces-standard-judge
2. http://www.bbc.co.uk/news/uk-17522726
3. http://news.bbc.co.uk/1/hi/uk/5288274.stm
4. http://divorcesupport.about.com/od/maritalproblems/i/nofault_fault_2.htm
Plunkett, Robert L. “Divorce Laws Should Be Reformed.” Marriage and Divorce. Eds. Tamara L. Roleff and Mary E. Williams. Current Controversies Series. Greenhaven Press, 1997. From Robert L. Plunkett, "Vow for Now," National Review, May 29, 1995; (c) 1995 by National Review, New York, NY. Rpt. by permission. Opposing Viewpoints Resource Center. Thompson Gale. 15 June 2005
Fundamentally the main factors facing a Justice in their decision is the matter of public safety and the harmony of the marriage. Compelling a spouse to testify against their partner is in direct conflict with that ideology. Therefore divorced or legally separated couples do not fall under this category. In R. v. Bailey it was determined that spousal incompetence does not survive divorce. Justice Morden observed that: “The modern policy justification for the rule in question is that is supports marital harmony.
In this day and age there are many variations of what constitutes a couple or family in comparison to many years ago. Long ago the idea of a ‘nuclear family’ was considered the norm; it consisted of the conventional husband, wife and children . But as our society progressed through the years this definition became less conventional and criticisms were made, this definition of ‘family’ did not account for gay unions, soul parents nor did it acknowledge the prevalence of extended family. The definition of family has changed over time, as have the socially defined roles of mothers and fathers. Within these varied family units, situations occur in which divorces and separations take place and a lot of the times these tricky situations may involve children, which can make an already tricky situation even more problematic. There are pieces of legislation which are in place which aim to protect the best interests of a child during the time their parents are going through divorce but sometimes these avenues can be more problematic and ultimately destroy unions whereas other avenues of dispute resolution such as mediation, albeit with its own criticisms, helps to keep relationships afoot in that it provides an opportunity for peaceful and mutual agreements to be made in a more laid back environment.
A century ago, divorce was nearly non-existent due to the cultural and religious pressures placed upon married couples. Though over time Canadians have generally become more tolerate of what was once considered ‘mortal sin’, marital separation and divorce still remain very taboo topics in society. Political leaders are frowned upon when their marriages’ crumble, religions isolate and shun those who break their martial vows and people continue to look down on those who proceed to legally separate their households. With that being said, couples do not just decide to get a divorce for no particular reason. There must be something driving them towards marital dissatisfaction and further, driving them towards divorce.
The no-fault attitude towards divorce encourages casual actions in marriages. Studies show that divorce rates have increased 15-25 percent as a result of the no fault divorce laws. Making it easier for divorces to occur can decrease the quality of a marriage. In general all marriages go through bleak times making one partner often think about solace through divorce. Instead of working through the problems in a healthy manner, divorce through the no fault laws are quickly utilized to provide escape.
In the 21st century, divorce has become commonplace not only in the United States, but in many parts of the world. Franklin and Boddie (2004) reported that within 10 years about 40-50% of American marriages end in divorce. In 2009, the divorce rate in the United States stood at 3.6 per 1,000 (Centers for Disease Control and Prevention, 2009). Divorce, however, is not only a social issue, but it has serious health implications. Divorce has been researched extensively and is considered an adverse event (Centers for Disease Control and Prevention, 2009). Adverse events such as personal or parental divorce has been linked to many ailments and conditions including substance abuse, depression, cardiovascular disease, diabetes, cancer, and premature mortality (Sbarra, Law, & Portley, 2011; CDC, 2009).
First, the Halackah requires a Get (bill of divorcement), which limits the possibility of a rash, thoughtless divorce (Biale p.6). Second, the Talmud introduces a number of grounds where a woman can seek a divorce. She must appeal to a Beit Din to compel him to divorce her (B. p.6). Furthermore, post-biblical Halackah introduces the Ketubah, which gives financial assurances to women in case of a divorce (B. p.6). Finally, in the Middle ages, the ban of Rabbenu Gershom forbids divorcing a woman against her consent (B. p.6).
Divorce should be harder to obtain due to the effect that it has on children the main effect it has on the children is depression. “ In the short term divorce is always troublesome for children Mavis Hetherington videotaped and scrutinized the workings of 1400 divorced families since the early 1970’s. Hetherington pinpoints a crisis period of about two years in the immediate aftermath of separation when the adults, preoccupied with their own lives, typically takes their eye off parenting just when their children are reeling from loss and feeling bewildered” (Hethrington 2). This article states that the short term effect of divorce affects the kid deep because they feel that they lost one forever and in those 1400 many of the kids felt the effect of the divorce. “Wallerstein has told us that divorce abruptly ends kids’ childhood, filling it with loneliness and worry about their parents, and hurting them prematurely and recklessly into adolescence. (Wallerstein 2).” This later affects the kids life because they try to think of happy memories they had but really all they can think about is the parent that they loss due to the divorce. “Contrary to the popular perceptions, the alternative to most divorces is not life in a war zone. Though more than 50 percent of all marriages currently end in divorce, experts tell us that only about 15 percent of all unions involve high levels of conflict. In the vast number of divorces, then, there is no gross strife or violence that could warp a youngster’s childhood. The majority of marital break-ups are driven by a quest for greener grass—and in these cases the children will almost always be worse off. (Zinsmeister 2)” this proves to me that when people get a divorce they most of the time don’t ...
Every year approximately 2.4 million marriages occur.Out of those,2.1 millionwill file for divorce in the United States. These marriage and divorce rates have significantly increased since the years past(Coltrane and Adams, 364).According to Schoen, in the 1950’s, 15 out of 1,000 marriages ended in divorce.In the 1970’s, the rates of divorcedoubled,increasing to 40 per 1,000 marriages. Currently, the rate of marriages resulting in divorce remains the same. Most marriages are ending within seven years ofthemarriage for multiple different reasons. Sociologists haveestablisheddivorce as a social problem from the rise in divorcerates due to the early year of marriages (2006).
Divorces are easy to obtain in the United States but the decision needs to be carefully examined. According to statistics, “divorce makes sense in the 10 percent to 15 percent of troubled marriages that involve high-level and persistent conflict with severe abuse and physical violence” (Dafoe 1). In the other 85 to 90 percent of marriages, the marriage can and should be reconciled. Many couples simply take the easy way out, find a lawyer, and end the marriage without ever trying to examine whether or not a conclusion can be reached other than divorce.
Divorce is a growing epidemic in Canada and the United States. It affects both parties involved, being the spouses, and also has a profound affect on children of the marriage. Recently our government has been revising the old divorce act. It was apparent that it was time to revise the act because it did not properly protect the children from being caught in the middle of things.
Divorce has become a phenomenon of the modern world and is grabbing attention of numerous nations as well as the media. Divorce rates are escalating in a global perspective however the increase is not as rapid as it used to be a few decades ago. Developed countries, such as the US, England and Wales are experiencing a gradual decrease in divorce rates and marriage rates since 1980 and is showing no sign of increasing. Divorce affects a wide population especially because of the development of
A divorce is a legal way to resolve a marriage in other words a divorce is an action between married people to terminate their marriage. It can also be called dissolution of marriage and is basically the legal action that ends a marriage before the death of a spouse. The legal separation of man and wife, affected, for cause, by the judgment of a court, and either totally dissolving the marriage relation, or suspending its effects as far as concerns the cohabitation of the parties. The dissolution is termed “divorce from the bond of matrimony,” or, in the Latin form of the expression, “a vinculo matrimonii” the suspension, “divorce from bed audboard,” “o mensa ct
A beautiful bond that connects two people through marriage can suddenly break and turn into a divorce. Couples sometimes face some difficulties throughout their lives, and they have to make decisions. Some handle their problems properly and manage to settle their arguments to prevent a serious decision such as a divorce from happening while others struggle to find a way to solve their issues which make divorce their only option. Divorce is breaking the marriage vows a couple had taken when they first got married. It ends the relationship the couple had together. The causes of divorce vary greatly from couple to another, but many people agree that infidelity, lack of communication, and financial problems are the three main causes of divorce nowadays.
Even in such cases, a divorce was barred in cases such as the suing spouse’s procurement or connivance (contributing to the fault, such as by arranging for adultery), condonation (forgiving the fault either explicitly or by continuing to cohabit after knowing of it), or