Research On The Modern Divorce System In England And Wales

Research on England and Wales’ modern divorce system (hereinafter referred to asEngland’s modern divorce system) is significant on two levels. First, as the source of thecommon law system, the United Kingdom has a deeply-rooted influence on the system ofcommon law in many countries. Therefore, the important status of English law is self-evidentin the common law system. Moreover, in international communication, countries haverecognized the fact that we need to create a legal system which is identical to other legalsystems in terms of basic requirements. This in turn will maximize their own interests. This isthe only way to be integrated more deeply into the international community and to achievemore developments and become bigger and stronger. It is true in the field of internationalcommercial law. But in fact, this trend is also obvious in the area of family law. Manycountries in the world have allowed divorce on the ground of relationship breakdown. Moreand more rules on divorce property division embody gender equality. Similar rules and similartrends cannot be listed exhaustively here. As a member in the international society, Chinacannot be totally isolated from this community. Moreover, China’s current legal system isconstantly learning from other countries’ advanced laws. Thus, it is necessary to studyEngland’s divorce system, as it also provides reference for improving China’s divorce system.Second, it is helpful to understand the English divorce system. In21stcentury China haswitnessed rapid economic growth and improvements in people’s living standard. More andmore foreigners come to China to study or work, whilst wealthy Chinese go abroad. Chinahas closer relations with foreign countries; therefore more and more international marriagesare being produced. Furthermore, the interests of parties in such a marriage are more complex.So, it is advantageous to understand England’s modern divorce system in order to deal withChinese-English marriages in the near future.In addition to the introduction, the present study is divided into five chapters. There aremore than200,000characters in the main body. The first two chapters introduce thedevelopment of England’s modern divorce system, the content of England’s modern divorcesystem. Based on the first two chapters, the following three chapters analyze England’smodern divorce system and its values, as well as its implications for China’s divorce system.The first chapter analyzes the evolution of England’s modern divorce system. The author analyzes its background from the perspective of social politics, religions, and feministmovement. Based on this, the author describes the trajectory of England’s modern divorcesystem. In this level, the author explores how the no-fault divorce was rooted and began toflower. During the second half of the twentieth century, a new round of social thoughtprompted English system to change with the time. First, the divorce system on the ground ofrelationship breakdown was introduced. Later, children’s rights movements and thepromulgation of Human Rights Act1998put new elements into reform of the divorce system.The second chapter starts from England’s divorce system focusing on details of thesystem to lay the foundation for later analysis. This chapter discusses the guiding ideology ofEngland’s modern divorce system. Its main contents are as follows: safeguarding divorcefreedom; maintaining a stable marriage, preventing hasty divorce; and guaranteeingrealization of maximal justice and minimal damage after divorce. The statutory ground fordivorce is the irretrievable breakdown of a marriage proven by the following five facts,namely: adultery of the defendant; irrational behavior of the defendant; abandonment formore than two years; two years’ separation and the defendant’s agreement to a divorce; fiveyears’ separation. In the divorce proceedings, the marriage is not ended until a divorce decreeabsolute is issued. The divorce procedure could be classified into two groups: defendeddivorce and undefended divorce. But in reality, few people will defend the divorce petition.Undefended divorce therefore is the norm, and it includes four phases: petition, response,decree nisi, decree absolute. Besides, the divorce law stipulates a time limit for thosepetitioned for divorce and protective measures for the weak party and children under16. Italso provides protection for religion freedom. Mediation is not mandatory. Now, thegovernment encourages mediation and reconciliation during the divorce process. Some lawfirms will provide collaborative mediation as an alternative dispute resolution. Judicialseparation is a specific type in the divorce process. As for the legal consequences, themarriage is terminated after divorce. After the divorce relief petition, the court will issue arelative property order or a divorce relief order considering factors in section25in MCA1973,based on the division of property made after the divorce decree. On the relationship betweenparents and children, the court will issue a residence order, a contact order, a prohibited stepsorder or a specific issue order after the applicant’s petition on the basis of balancing relativefactors. In terms of child support, the Child Maintenance Service will help spouses to get theirchild support. Besides, the court will protect child and issue orders as a supplement. The third chapter focuses on analysis of English modern divorce system consideringdivorce judicial practice. First, in divorce the guiding ideologies are "to protect freedom ofdivorce","to maintain marital stability and to prevent hasty divorce", and "to guaranteerealization of maximal justice and minimal damage after divorce". These complement eachother. In terms of statutory grounds for divorce, considering the high dependence on fault inthe old divorce system and that the fault easily leads to the antagonism between spousesduring divorce, the government tried to introduce a completely no-fault divorce system inFamily Law Act1996. But it ultimately failed. The failure has its reasons. But in judicialpractice, the fault-based grounds is an measure to prove breakdown of an marriage; supportersarguing for deleting fault-based grounds can be found in judges and officers in legislationdepartment; Deleting fault-based grounds conforms to legislative goals as well as thedevelopment trend of European family law. Therefore, deleting fault-based grounds fordivorce should be an inevitable trend of family law development in the future. Secondly, asregards divorce proceedings, family disputes and family justice has its own characteristics,which determine that the divorce process should be consistent with the characteristics offamily disputes. As to the legal consequences of divorce, the principles of propertyrelationship between disputes–namely need, compensation and equal sharing–have alogical relationship. This relationship should be paid attention to in judicial practice. Asregards the family estate, pensions, the courts pay attention to the protection of the rights ofthe disadvantaged. For pre-nuptial and post-nuptial agreements, traditionally, English lawholds that spouses cannot predict what will happen in the marriage such as child birth, thus itis against fairness if couples want to evade the rules and make property division agreementsfor the future after divorce. Therefore, courts will examine these agreements in detail in orderto safeguard values of legitimacy and fairness. Usually, courts rarely regard them enforceable.But recently, the judiciary has changed its attitudes a little. As regards to the relationshipbetween parents and children after divorce, the court should take into account the principles ofchild welfare. The enforcement of contact orders is different from people’s ideas. The systemon collection of child support is undergoing reform. The Child Maintenance Service willreplace the Child Support Agency. They will calculate child support and help the weak to getit. However, there is now a charge for this service. In a conclusion, the author analyzes a fewfurther features of England’s modern divorce system: the conservative nature of Englishmodern divorce system; the emphasis on empirical research on institutional reform; and focus on substantive fairness in terms of legal consequences of divorce.Chapter4examines values of England’s modern divorce system. England’s moderndivorce system has a special meaning. The value of England’s modern divorce system refersto the host-guest relationship which is established in the interaction of England’s moderndivorce system dealing with divorces in British society. It is evaluated with the settlement ofdivorce disputes and protection of legitimate rights of divorce disputes. The specialty ofEngland’s modern divorce system lies in as follows: as a whole, divorce freedom as the mainbody and family stability as a supplement; as regards to gender relations, it is gender equality;as regards to the parent-child relationship, it is the best interests of children. England’smodern divorce system pursues freedom, fairness, equality, and order value. Among them,order value can be embodied in support, adjustment, and protection. If there is any conflictbetween these values, fairness should be given the highest priority.The fifth chapter analyzes the practical problems in China’s present divorce system andputs forward our shortcomings, respectively, from divorce’s guiding ideologies, legal groundsfor divorce, the divorce process, and legal consequences of divorce. In comparison to theEnglish model, the author analyzes what is beneficial to our system reform and proposessome suggestions for legislative reform and judicial practice.