In recent years the actual basis for divorce — as opposed to the consequences of relationship breakdown — has attracted relatively little academic debate. Yet in numerical terms the granting of a divorce is probably the aspect of family law that affects more couples than any other — save only marriage itself, and few couples think of seeking legal advice when entering into marriage. While both the number of divorces and the divorce rate1 have fallen in recent years (both having peaked in 1993, when there were over 165,000 divorces in England and Wales, a rate of 14.3 divorces per thousand married persons2), there were still 118, 140 divorces in 2012, the most recent year for which statistics are available.3 And divorce is very much perceived as a legal act: indeed, in one survey of access to justice it was found that those affected by divorce were more likely to seek legal advice than in the case of any other problem.4 Moreover, the current law has been widely criticized for many years, and its problems have not lessened over time. There is thus good reason for revisiting the debates about what the law of divorce should be.
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