No-fault divorce: 2017

Time to re-think no fault divorce after Owens

 

The fate of the unfortunate Mrs Owens and her refused divorce set me thinking about the need to review our divorce laws, especially if Mrs Owens’s case represents how senior judges say our divorce laws should work. I had thought that since the 1970s most people, if they want a divorce, could get one. Not so Mrs Owens (Owens v Owens [2017] EWCA Civ 182), whose unreasonable behaviour petition was dismissed on the assessment of a circuit judge and of the Court of Appeal (Sir James Munby P, Hallett and Macur LJJ) namely four elderly, white, middle class individuals, two of each gender.

 

In the final analysis the issue involves an application of law to facts, and then imposing a subjective judicial view of what is can ‘reasonably’ be put up with in a marriage. But first what could fairly be the law on what should bring a marriage to an end?

 

A much simpler scheme might be

 

• That if parties agreed they could file a mutual petition confirming that their marriage be dissolved (this still cannot be done under the modern law);
• For those who do not agree irretrievable breakdown would be presumed after one year of living apart; and
• The ability would be there (unlike now) to apply to the court for financial provision at any time (now you have to wait till you can file a divorce petition before applying to unravel or to reconfigure your family finances).

 

The last time law reform was attempted – Family Law Act 1996 Pt 2 – it was highly complex, involved the then fashionable ‘information meeting’ (Prince Charles was getting divorced at the time: would he have to attend such a meeting?); and it was never brought into operation (ditched finally by Children and Families Act 2014). So the law remains as in 1969 with divorce allowed on one ground – irretrievable breakdown – to be established on one or more of five facts: adultery, unreasonable behaviour, desertion for two years, and living apart for two (with consent) or five years.

 

Irretrievable breakdown and no divorce?

 

And what of Mrs Owens? She is locked in a dead marriage and blocked from divorce – it might be thought – by a narrow view of the present view legal issue. ‘On any view, the marriage is over’ said Hallett LJ (§102); and the other Court of Appeal judges agreed. Mrs Owens’s marriage has irretrievably broken down (Matrimonial Causes Act 1973 s 1(1)). But she cannot be divorced. Can this be what Parliament intended when the Divorce Reform Act 1969 (now consolidated into MCA 1973) found its way onto the statute book?

 

We are entitled to ask; for can Parliament really have intended that irretrievable breakdown might not lead to divorce? Could those 1969 MPs have thought that a marriage which was dead could not – by one of the facts under s 1(2) – be dissolved. I doubt it. But Parliamentary intent was not amongst questions the Court of Appeal judges seemed to ask in their 100+ judgment. Yet they were entitled to do so. Indeed it is arguable that they had the duty so to do. The court is permitted to look not just at the words of a statute but at the Parliamentary intent behind the when an Act was passed (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 2 WLR 924).

 

The law: irretrievable breakdown, unreasonable behaviour

 

The law on divorce and unreasonable behaviour is in MCA 1973 s 1, namely:

 

‘(1) …a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say –

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;’

 

The effect of this is that if one spouse (A) wants a divorce immediately they must have a spouse who is willing to admit adultery (s 1(2)(a)); or to allege successfully – as Mrs Owens failed, in law, to do – that their spouse (B) has ‘behaved in such a way…’ etc. What is to be ‘reasonably… expected’ is entirely subjective. It depends on what an individual judge thinks on the day is to be ‘reasonably… expected’; or, put another way: how much must A put up with? And what might those MPs in 1969 have expected A – or, for that matter, Mrs Owens – to put up with.

 

Then turn the question around. Ask deductively, as the judges did not do: if a court finds a marriage to be dead, does that not prove that at some level someone – eg B – must have behaved in a way that A ‘cannot reasonably be expected to live with’ B. Munby P scratched at this point in §37 when he set out a test for unreasonable behaviour: ‘what is proved to have happened in this marriage’ and ‘having regard to the cumulative effect’ of B’s conduct has B behaved in such a way that A cannot reasonably be expected to live with B?

 

But Sir James did not look at the other end of the telescope. If a marriage has broken down, is it not reasonable to say that someone must have behaved in a way that the other cannot be expected to live together: a process of deductive reasoning. MCA 1973 is an ‘always speaking’ statute which must be seen in the light of how a reasonable person would see its words in 2017 (§§39 and 41), said Sir James. But no, the judges seem to think, the law calls for feats of Victorian stiff-upper lip fortitude from parties to a marriage, where one wants a marriage not to be dissolved.

 

But we are allowed to ask: even in 1969 would the MPs who passed the original divorce reform Act have expected Mrs Owens to remain married to, and living with, her estranged husband. I doubt it.