Irretrievable breakdown of marriage: the old and the new
In Matrimonial Causes Act 1973 (MCA 1973) ‘irretrievable breakdown’ of marriage is easy to deal with. Everyone – other than academic lawyers, perhaps – knew that what proved divorce was the ‘facts’ (MCA 1973 s 1(2)): adultery, unreasonable behaviour, desertion (two years) and living apart (two years with consent and five years, without). It is the term used as teh sole ground for divorce in the Lord Chancellor’s proposals for law reform in Reducing family conflict Government response to the consultation on reform of the legal requirements for divorce, Ministry of Justice, April 2019 (considered also here).
Under the existing law, no one actually files an ‘irretrievable breakdown’ petition – obviously. Well no-one calls it that, anyway. You file an ‘adultery’ petition, a ‘two year consent’ petition and so on. As a matter of political fact the ‘irretrievable breakdown’ part of divorce (MCA 1973 s 1(1)) was a middle line between the reformers who promoted the Divorce Reform Act 1969 and the clerics (‘no man shall put asunder’). In law, irretrievable breakdown was the ground; but that ground did not exist alone. It had to be proved by one or more of the five facts. On its own it became more or less of no meaning or significance.
Now ‘irretrievable breakdown’ on its own is proposed by the Lord Chancellor as the ground for divorce; but unsupported by any facts as proof. Proof is only by a party (1) filing a divorce application; or (2) by both parties so filing an agreed application. The problem is that, in a vacuum, the word ‘irretrievable’ – especially when applied to breakdown of a relationship – has a distinctly heavy meaning. Stated bleakly and unsupported, ‘irretrievable’ – unsupported by qualifying facts – means final. Yet who can say their relationship is for ever at an end?
The end of a relationship; but ‘irretrievably broken down’?
A personal relationship may be at an end. It may, for now, appear even to have broken down. This need not mean the breakdown is ‘irretrievable’. Lots of parents and their children fall out; but their relationship is not irreparable. I may lose touch with a friend, especially when Christmas card contact is less common nowadays. Our relationship may be in abeyance for a few years, broken down or lapsed; but is it ‘irretrievable’? And who can say of a relationship now that it is ‘irretrievably broken down’? Put like that ‘irretrievable’ is a very sad – daunting even – word; and, logically, it is impossible to assert.
And yet, the Lord Chancellor proposes no hard-edged ‘fact’ to prove ‘irretrievable breakdown’ – for example, living apart for a period (perhaps six months or a year). A fact, which can be denied (‘we weren’t living apart all that time’) would have the same clear and provable effects as the present MCA 1973 s 1(2) ‘facts’. It would enable the highly subjective ‘irretrievable’ to be proved in the tiny minority of cases where the living apart was disputed.
Law reform on the back of a case as badly case managed as Owens v Owens  UKSC 41,  AC 899,  2 FLR 1067 (Lord Wilson in Supreme Court explained how it should have been done) – and where there were no dependent children – is not a good basis for law reform. A judgemental ground with any scope for judging denied is not logically – or in law – a good way forward.
‘Irretrievable breakdown’ as a form of words was rarely – if ever – analysed under the existing legislation. If there is to be no basis for contesting divorce proceedings, as the Lord Chancellor proposes, that ‘irretrievable’ – unsupported by a fact to prove it – is likely to be open to challenge. And the way it was used in the 1969 Act (now MCA 1973 s 1(1)) must be fully understood by the divorce law reformers.
The prior ‘marriage’ must also be defined. It is the ‘marriage’ which is said to have broken down. On open ground – ie with no back up facts for proof – what does the Lord Chancellor mean by a marriage? That is for another day.