Report No. 71
Irretrievable Breakdown: The Theory
3.1. Germ of the theory.-
It would now be convenient to deal briefly with the theory of irretrievable breakdown of marriage. During the last twenty years or so, in many countries of the world, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory.
The germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. For example, the (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement1 for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond J., in a passage which has now become classic, enunciated the breakdown principle in these word2:-
"The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there arc special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous."
1. Patricia M. Webb Recent'Changes in U.K. and New Zealand Divorce Law, (1965) 14 ICLQ 194, 195.
2. Ladder v. Ladder, 1921 New Zealand Law Reports 876, quoted in Jeffries Matrimonial Fault-Is it Now Relevant, 1972 New Zealand Law Journal 513, 515.