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Family Law Essay

1478 words - 6 pages

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divorce was incorporated in Part 2 of The Family Law Act 1996; however, the act never came into power and was later repealed.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 out of love there is no legal defence for divorce; they must prove that one side is responsible for the failed marriage. In agreement, Campaign director, Nadine O'Connor said “where a relationship has broken down, it's not a criminal matter; it's a couple that has simply fallen out of love.” (2)
In effect, each party will try to blame the other to attain a divorce from the court. This can cause greater devastation through increased quarrels and bitterness in the relationship as each party will nitpick and reveal negative aspects of their partner. This is extremely undesirable especially when children are involved; as it can cause trauma and humiliation for the children. The entire process consists of conflicts and heartache.
Whereas under a no-fault divorce system, a couple that has reached a mutual agreement that their marriage has ended, can separate with some dignity and hassle free without a two-year wait rendering that requirement needless. In such situations, a no-fault divorce would be ideal, however since England and Wales follows a fault based system, the only method to speed up the divorce would be proving that one party is at fault in a petition on the grounds of adultery or unreasonable behaviour.

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