Minister Manickchand seeks to update archaic divorce law

Oct 20, 2008 News

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By Gary Eleazar

For decades, lawyers have struggled to convince judges, using the present Matrimonial Causes Act (divorce law) that was first enacted on December 30, 1916, that there was reasonable ground for a married couple to be granted a divorce.
Ask any lawyer and he/she would tell you how difficult it was to prove that one spouse was guilty of causing the relationship to come to an end.
When this could not be achieved, and after spending significant sums of money, two persons would be bound by law as husband and wife, forced to live their lives miserably, and possibly endure consistent physical, verbal and emotional abuse.

As a result, the Minister of Human Services and Social Security, Priya Manickchand, is seeking to update this archaic law, given that it was last amended in 1953 and, as such, the last 55 years have seen many drastic  cultural, social, religious, economic and political changes.
“The application of laws formulated in 1916 to events of 2008 is bound to produce artificial, unjust and inappropriate results and consequences…These facts undoubtedly underscore the urgent need to reform our laws relating to divorce.”
In 1953, when the divorce laws were last amended, women were still viewed by many as the property of, and subordinate to, men. Women were not equal before the law. Divorce was also viewed as taboo.
Times have changed, and women have fought for decades and, to some extent, won the right in most countries to be treated as equals. This saw the passing of laws in the early 20th century which stipulate that women have become independent, and men and women are equal before the law, and that a person has a fundamental right to determine his/her own marital status, and also that all persons have a fundamental right not to be discriminated against on the basis of his/her marital status.
During the next week, the minister is to publish a consultation paper on divorce reform, around which consultations will be held regarding proposals for what is known as ‘No Fault Divorce.’
Traditionally, divorce laws have been fault-based, meaning that a person approaching the courts for the divorce had to prove that the other party to the marriage is to blame for the breakdown of the marriage, or has committed a matrimonial offence.
Lawyers are finding it more and more difficult to prove guilt, especially when persons may have rushed into a relationship and then come to realize that it was not meant to be.
In many instances, two people would amicably decide to part ways, and even remain friends; but proving that one person or the other was responsible for the breakdown in a relationship is a tedious task.
The necessity to assign blame and recount the ills of a marriage, in order to obtain a divorce, in many instances has the tendency to exaggerate the differences and tensions in the marriage.
In some cases, parties must relive and recount their failures in order to terminate their relationship, and in many cases, failures responsible for the decision to part ways hardly exist with one person.
It is therefore commonly accepted, especially among legal minds, that the animosity that a fault-based divorce creates is counter-productive to the parties moving on and having amiable post-divorce relations.
This is particularly undesirable where the couple has parented children, and cordial relations are important for creating a healthy and conducive atmosphere for shared custody.
The object of a no-fault divorce is embedded in the desire to have a spouse obtain a divorce without the need to rehash in court the problems and failures of a marriage.
The minister is therefore seeking to make obtaining a divorce not dependent on the ability of one party to assign to the other the blame for the breakdown of the relationship.  This is desirable, according to Manickchand, because blameworthiness for the breakdown of the relationship does not alter the fact that the relationship has come to an end.
“The culpability of either party in contributing to the breakdown of the relationship does not alter the fact that the relationship is at an end, and the law should facilitate the formal dissolution of a relationship that is already at an end by reducing the conflict, animosity and tension in the dissolution process.”
There is the contention that simplifying divorce laws so that obtaining a divorce is less messy increases the divorce rate.
This is a fallacy, insists Manickchand, given that divorce laws do not actually influence the success or failure of a marriage.
According to Manickchand, a failed marriage ends a long time before the actual divorce.  “Making it difficult for the parties to divorce does not preserve troubled marriages, but forces the parties to remain in a hopeless relationship, or in legal bond that does not reflect the factual reality.”
A 2006 study of the divorce laws of 18 European countries between 1950 and 2003 revealed that the availability of ‘no fault’ grounds for divorce accounted for a significant increase in the divorce rates in the five years following the reform only.
Thereafter, the divorce rates returned to the pre-reform rates.
This result indicates that the immediate post-reform surge in divorce rates was attributed to those couples who were trapped in already failed marriages but did not satisfy any of the pre-reform grounds for divorce, the minister said.

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