“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 Any social issue or trend inherently proliferates at a staggering rate with any responsive legislation arguably being out of date and inadequate on implementation.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). [...]
[...] However, it is also argued that removing fault also trivialises marriage as after all is the point of making a vow when there is no fault if you break (Baroness Young, 1995) However, the Family Law Act 1996 as implemented introduced a no fault divorce providing for one or both of the partners to commence the proceedings by making a statement that the marriage has broken down. Although this provision is a welcome attempt in removing the problems associated with the five facts provisions under the MCA, perhaps the pendulum has swung too far in the other direction. [...]
[...] It is unrealistic for legislation to save marriage and change the culture of divorce and herein lies the initial problem for legislators. Despite the political and social agenda in saving marriage, divorce is an unfortunate reality and policy makers need to focus on this fact in order to enter into meaningful debate on the issue. Only then will the law be closer to addressing divorce in a satisfactory manner and perhaps able to proceed in developing a realistic legislative framework for divorce. [...]
[...] In this analysis, I will critically analyse the current law of divorce, highlight the difficulties in legislating for divorce and consider whether deficiencies in the current system can realistically be overcome with a satisfactory alternative. CHAPTER BACKGROUND TO CURRENT LAW Throughout English history, the concept of divorce reform has generated conflict and political friction (Phillips., 1998). At the beginning of the nineteenth century the move towards removing divorce from the entrenched jurisdiction of the church was faced with strong moral opposition both from ecclesiastical and political authorities, believing that secularising and democratising divorce the state would be abandoning its role as moral guardian and social protector”. [...]
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