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Report No. 71

3.3. Defects of the matrimonial fault theory.-

The defects of the "matrimonial fault" theory have been described more often than once. On May 22, 1969, the General Assembly of the Church of Scotland accepted the Report of their Moral and Social Welfare Board, which suggested the substitution of breakdown in place of matrimonial offences. It would be of interest to quote what they said in their basic proposals1-

"Ma trimonial offences, are often the outcome rather than the cause of the deteriorating marriage. An accusatorial principle of divorce tends to encourage matrimonial offences, increase bitterness and widen the rift that is already there. Separation for a continuous period of at least two years consequent upon a decision of at least one of the parties not to live with the other should act as the sole evidence of marriage breakdown."

Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of misery for the parties. These, in brief, are the main postulates of the theory of irretrievable breakdown as a ground of divorce.

1. These proposals were referred to by the Lord Chancellor in House of Lords Debates dated 30th Jun, 1969, Col. 319.



The Hindu Marriage Act, 1955 - Irretrievable breakdown of Marriage as a Ground of Divorce Back




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