Family values not threatened by ‘No-Fault Divorce’

Nov 09, 2008 News

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This past week, Minister of Human Services and Social Security, Priya Manickchand, held the first in a series of consultations on her proposed introduction of ‘No Fault Divorces.’

The consultations were well attended and saw representations from groups such as the Family Commission, the Guyana Association of Women Lawyers (GAWL), the Guyana Bar Association (GBA), Red Thread, Help and Shelter, as well as representatives of the religious community, among others.

The main opposition to the proposal, which was later clarified, was the fact that the proposal would erode family values.

She did posit that there is need for an open, national debate on ways and means of preserving family values.
According to Manickchand, that was a serious issue, and when all else fails to keep the family values intact, there needs to be a way to amicably dissolve the marriage.

She added also that there needs to be legislation to facilitate good post divorce relations, especially when there are children involved. GAWL supported the proposal but also called for the mediation process to be fully utilised.

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.

Under the current legislation, lawyers find it difficult to prove that one spouse was wrong or 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 bound by law as husband and wife would be forced to live their lives miserably, and possibly endure consistent physical, verbal and emotional abuse.

This prompted Minister Manickchand to seek to update the archaic law that was last amended in 1953, given that the circumstance of that day, some 55 years ago, has changed culturally, socially, religiously, economically and politically thus drastically changing the reasons for a divorce, significantly since 1953 and moreso since 1916.

“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 as the property of, and subordinate to, men, and were not equal before the law. In addition, divorce was still 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; hence the application of laws passed in the early 20th century to 21st century to situations where women have become independent and men and women are equal before the law, and when a person’s fundamental right to determine his/her own marital status is recognized, and also that all persons have a fundamental right not to be discriminated against on the basis of his/her marital status, is almost certain to produce unfair, imperfect and inappropriate results.

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 was to blame for the breakdown of the marriage, or had committed a matrimonial offence.

As was mentioned before, lawyers are finding it increasingly difficult to prove guilt, especially when persons may have rushed into a relationship and come to realise 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 the relationship is a tedious task.

The necessity to assign blame and to recount the ills of a marriage in order to obtain a divorce, in many instances, has the tendency to perpetuate 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 may not even exist.

Therefore, it is commonly accepted, especially among legal minds, that the animosity that fault-based divorces create is counter productive to the parties moving on and having amiable post divorce relations.

This is particularly undesirable in situations where the parties have children together, where amicable relations between the parties 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 (that may not have even existed) of the marriage.

The minister is therefore seeking to make obtaining a divorce not be 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, by simplifying divorce laws so that obtaining a divorce is less messy, it 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 has ended 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 relationships that do 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 pellucidly 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.

Manickchand, therefore, is in essence seeking to reform the law by allowing amicable divorces without proof of fault on the part of one or more parties.

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