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A critical examination of current law of divorce and the need for change

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Preet L.
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  1. Introduction.
  2. Background to current law.
  3. Review and analysis.
  4. Comparison with other jurisdiction: Scandinavia and Canada.
  5. Recommendations.
  6. Summary and conclusion.

?There is no one branch of the law more important, in any point of view, to the great interests of society??than that which regulates the formation and the dissolution of the nuptial contract. No institution indeed more nearly concerns the very foundations of society?.than that of marriage? (Lord Brougham 1841).
The relationship between law and social behaviour has always posed a difficult balancing act for legislators. Any social issue or trend inherently proliferates at a staggering rate with any responsive legislation arguably being out of date and inadequate on implementation. The classic definition of marriage in English law under Hyde v. Hyde (1866) and the preference for preserving the sanctity of marriage has created conflict in the implementation of an effective law of divorce that does not undermine the doctrine of marriage (Stone, 1530).

[...] Conversely, the lack of grounds for divorce under Scandinavian divorce law ignores the need for aggrieved parties to achieve a sense of vindication and ?justice? in divorce, particularly in cases involving domestic violence and adultery (Probert 2006). This again begs the question whether it is appropriate for the law to vindicate moral in cases such as adultery. Canada The Canadian legal framework for divorce has its roots in the English legal system and as such, it is interesting to compare how divorce law has evolved in both jurisdictions. [...]


[...] Mykituik Roxanne, Family Law: Cases and Materials, Osgoode Hall Law School, (2006) Probert., (2006) Cretney's Family Law., 6th Revised Edition (2006) Sweet & Maxwell Phillips, Putting Asunder: A History of Divorce in Western Society, Cambridge University Press (1988). Putting Asunder: A Divorce Law for Contemporary Society, London (1966) Solicitors' Family Law Association, Looking to the Future Mediation and the Ground for Divorce, (1994 Stone, L., Road to Divorce: England 1530-1987, Oxford University Press (1990). The Ground for Divorce, Law Commission No.192 (1990). [...]


[...] In the Law Commission's Consultation Paper in 1993, the Government again highlighted the importance of marriage but conceded the fact that ?changing the divorce law cannot save irretrievable marriages? and instead focused on how the law could ?have a major effect on the way in which divorces are conducted, and the impact of a divorce on those concerned? (Law Commission, Cm 2424 1993). The sentiments behind the intended reforms were clearly a step in the right direction in recognising the need to focus on the issue of relationship breakdown. [...]

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