Reducing family conflict Reform of the legal requirements for divorce, September 2018
(1) INTRODUCTION: LAW ON MARRIAGE BREAKDOWN
Divorce reform is proposed by the government (Reducing family conflict Reform of the legal requirements for divorce, September 2018 Ministry of Justice) (the ‘government paper’). Any question of reform raises two immediate, but separate, questions:
- 1 What is a marriage; and
- 2 On what grounds should it be dissolved?
This paper will answer the second question by proposing that the ground for divorce be irretrievable breakdown (as the government paper proposes); but it will touch on questions in relation to ‘What is a marriage’ first. The facts on which breakdown is based should be reformed from the present law, so that those facts are either (1) consent (ie immediate divorce on joint demand, on joint filing of a request); or (2) living apart for a year.
To that end divorce reform in law terms could be by amendment of the existing Matrimonial Causes Act 1973 (MCA 1973) s 1. The proposal in the previous paragraph, and as explained later, could look like this (additions (ie amendments) are the underlined passages and with the present ‘facts’ deleted):
Draft clause 1: DIVORCE REFORM BILL
1 Divorce on breakdown of marriage
(1)Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage An application for a divorce order may be presented by one or both parties to the marriage on the ground that the marriage has broken down irretrievably.
(2) [The body [A]] dealing with an application for divorce The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless one or both parties satisfies [A] either
(a) that the parties both consent to their marriage being dissolved; or
(b) that the parties have lived apart from one another for a period or periods of one year prior to the presentation of the application
the petitioner satisfies the court of one or more of the following facts, that is to say—
(a)that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d)that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;
(e)that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).
(3) On an application On a petition for divorce it shall be the duty of [A] to consider to inquire, the facts alleged by the applicant for a dissolution under paragraph (2) above into the facts alleged by the petitioner and into any facts alleged by the respondent.
(4)If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to section 5 below, grant a decree of divorce.
(5) A divorce order shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six weeks from its grant (5)Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection….
What is a marriage?
First, however, it must be recalled that all this is about marriage breakdown: not any other relationship breakdown where a couple have lived together and, perhaps have children. They may have lived together, they may have gone through a ceremony of marriage in their own religious establishment; but for divorce and family finance purposes, they will not be married. Thus, something must be said about the increasing challenge raised by muddle law on what is a marriage which can be dissolved (ie when does divorce apply in the first place?). Whilst on the subject of divorce, the government should also look at the arcane – especially in terms of drafting – of Marriage Act 1949 which was consolidated from earlier legislation which dealt mostly with Christian marriage.
This is important. As our law stands marriage – even if it is a void marriage – is an essential pre-requisite to financial support for the economically weaker spouse (often the wife) or partner. That is to say, the benefits of Matrimonial Causes Act 1973 Pt 2 can only be used to support that spouse and any children, if the claimant spouse or partner comes within Pt 1 (ie can get a divorce, judicial separation or nullity of a marriage). None of these rights apply if there is no marriage. Should not our ecclesiastical law-based marriage laws be reviewed at the same time as divorce?
The government paper speaks of ‘reducing family conflict’ (its heading). It must always be remembered that English law has still not managed to find a 21st century law which deals with support for the weaker partner where couples do not marry. Most children law – eg Child Support Act 1991 and Children Act 1989 – does not distinguish between parents who are married and those who are not. This primitive area of family law needs urgent attention also; though it is not susceptible to easy law-making, as with divorce reform. A simple redraft of one section of a statute will not be enough, partly because there is almost no statutory provision for cohabitants, as yet.
These questions are prompted by the government paper Reducing family conflict etc. Its object is to make divorce less acrimonious; and especially for children. It proposes to so this by amending Matrimonial Causes Act 1973 (MCA 1973) s 1, to provide still that ‘irretrievable breakdown’ is still the sole ground for divorce (s 1(1)); but it is short on proposals as to how that is to be established.
The paper wants to avoid contested divorces – published, as it was, in haste after the Supreme Court Owens v Owens  UKSC 41. But, suppose spouse P says that their marriage has irretrievably broken down, and files a document in the appropriate registry – the Family Court under the present law – to say so. Spouse R does not agree. What is to be done then? This note contains a proposal.
The present law, framed in 1969 (Divorce Reform Act 1969 ss 1 and 2), provides that if P seeks a divorce she or he must prove one or more facts – adultery, behaviour of R such that P cannot be expected to live with him, desertion for two years (very rare nowadays), living apart for two years (and R consents to the divorce) and five years apart. Until Owens the vast majority – over 99% – of divorces went through undefended.
Before a marriage can be dissolved, what is a marriage?
What is a marriage?
There can be no divorce without a marriage. Whether or not there was a marriage depends on the formalities adopted at the time of its inception; or of any presumptions available to one or both parties as to its existence. If there is an issue as to whether there was a marriage separate from divorce (eg where a widow’s pension is claimed, if registration is doubted or in the context of immigration) application for a declaration as to marital status may be made under FLA 1986 s 55 (where inception of marriage is explained). A valid marriage must be in accordance with Marriage Act 1949 (see under FLA 1986 s 55)
Inception of marriage (or not) can be categorised as follows:
- (1) A valid marriage is one celebrated in accordance with Marriage Act 1949; or sufficiently within the terms of the 1949 Act for the marriage to be recognised as valid (Collett v Collett P 482,  3 WLR 280, Ormord J; A v A (Attorney-General intervening)  EWHC 2219 Fam,  Fam 51, Moylan J (also as MA v JA)). This confers on spouses the rights which accompany marriage: eg tax benefits, entitlement to pensions, inheritance advantages etc. On breakdown of a marriage parties are entitled to seek financial provision under MCA 1973 Pt II.
- (2) A marriage may be voidable or void. This happens occurs where a couple have not complied with requirements of a valid marriage (as considered further at MCA 1973 ss 11 and 12). Their union may be annulled as being a marriage which is void (the marriage is treated as not having taken place, save for MCA 1973 Pt 2 financial relief claims); or it is voidable (married till avoided). It will be open to either to apply for MCA 1973 financial provision; and they will be able to divide their assets or deal with maintenance (Akhter v Khan & Attorney-General  EWFC 54, Williams J: void under MCA 1973 s 11(a)(iii)).
- (3) Presumed marriage – even though formalities may not have been complied with the couple will be presumed married where validity of a couple’s marriage can be presumed by a form of ceremony and ‘cohabitation as a married couple for a substantial period of years’ (Chief Adjudication Officer v Bath  1 FLR 8, CA; Hayatleh v Modfy  EWCA Civ 70).
Marriage Act 1949
The Marriage Act 1949 consolidates earlier legislation whose roots are to be found in ecclesiastical law. Part I deals with restrictions on marriage (ie capacity); Part II deals with marriage according to the rites of the Church of England; and Part III deals with marriage under a superintendent registrar’s certificate. In Part I, s 1 (prohibited degrees) and s 2 (persons under 16) state expressly that non-compliance makes a marriage void. Section 3 requires parental consent (unless dispensed with) to the marriage under Part III of a person under full age, but s 48(1)(b) makes plain that non-compliance does not invalidate a marriage. Sections 25 and 49 state expressly that a marriage is void if the parties to it ‘knowingly and wilfully intermarry’ in contravention of the requirements specified in those respective sections. A marriage which does not comply with s 49 are void, but only where ‘knowingly and wilfully’ undertaken (see eg A v A (Attorney-General intervening)  EWHC 2219 Fam,  Fam 51 -; Chief Adjudication Officer v Bath  1 FLR 8, CA).
A marriage is void under Marriage Act 1949 where it does not comply with one or more of the conditions in s 49 which include (adopting the numeration in the section):
(a)without having given due notice of marriage to the superintendent registrar;
(b)without a certificate for marriage having been duly issued, in respect of each of the persons to be married, by the superintendent registrar to whom notice of marriage was given;…
(f)in the case of a marriage in a registered building (not being a marriage in the presence of an authorised person), in the absence of a registrar of the registration district in which the registered building is situated;. . .
(g)in the case of a marriage in the office of a superintendent registrar, in the absence of the superintendent registrar or of a registrar of the registration district of that superinentdent registrar;
(gg)in the case of a marriage on approved premises, in the absence of the superintendent registrar of the registration district in which the premises are situated or in the absence of a registrar of that district; or
(h)in the case of a marriage to which section 45A of this Act applies, in the absence of any superintendent registrar or registrar whose presence at that marriage is required by that section.
(3) DIVORCE REFORM
Divorce reform: government proposals
The essence of the government proposals is to be found towards the end of its paper, summarised as:
‘The Government therefore proposes to repeal the requirement for petitioners to give evidence of one or more facts and to replace it with a process of giving notice of irretrievable breakdown. In this process, the person seeking the divorce (or potentially the couple jointly) would give notice to the court of the intention to divorce, stating their belief that the marriage had broken down irretrievably.’
The paper goes on: ‘Irretrievable breakdown’ remains the ‘sole ground’ for divorce (p 26) as proposed by the government:
‘… Irretrievable breakdown would therefore continue to be the sole ground for divorce. In the two-stage decree process that we propose to retain, the court would not be able to grant the first and interim decree (the decree nisi) if it was not satisfied that the marriage had broken down irretrievably.’
That is uncontroversial, surely. But supposing R (the non-filing spouse) does not agree. He or she says the marriage has not irretrievably broken down. The proposals continue (pp 26 and 34): ‘The Government also proposes to abolish the ability to contest the divorce as a general rule….’. The paper goes on that it is intended ‘to remove the opportunity to contest (“defend”) the divorce because it serves no practical purpose. This has been increasingly a feature of divorce law in comparable jurisdictions.’
That means divorce on demand, if there is no way R can answer and respond to – or ‘contest’ – the petition. It would also be against most principles of English law and of fairness generally. European Convention 1950 Art 6 demands that anyone have a fair trial of an issue in civil court proceedings; but will divorce in any way be a justiciable issue?
In reality that brings us back full circle to where the law reformers were in 1969: if one person asserts something in legal or administrative terms, natural justice requires that the other party be heal in reply. In Latin the long used legal term is; Audi alterem partem (hear the other side).
So how does P prove ‘irretrievable breakdown’ if the consent application for divorce is not acceptable? That P should not be expected to live with R. Oh no: that is where Mr and Mrs Owens found themselves nearly two years ago…
Divorce on demand
So why does not Ministry of Justice just let P say: ‘I don’t want to be married any more’? That is then an end of it: no court fee, no administrative process. It does not matter whether P’s spouse or civil partner wants his and P’s marriage to subsist. That is it. That is what the proposals appear to say. Yes, that is what they say; but that is to point out the emperor is wearing no clothes. There would be surviving MPs (mostly conservative?) who could not stomach a bill if it said that marriage dissolution could be on demand.
The consultation says it does not want divorce on demand. But as at present proposed, as far as I can see, a divorce will be like buying sweets or going shopping in a supermarket (except that the filing fee (if retained) is likely to be a lot more that most supermarket expenditure). It will be a matter of asking for your divorce decree, and – as with buying (say) a Mars bar – tendering the right cash: demand (I want my marriage dissolved and here is the fee) and supply (one decree nisi, sir). That may be what the government want. It may be the right thing (I am not so sure). But let us all say so.
(4) DIVORCE: REGISTRATION OR COURT PROCESS
Divorce: an administrative issue, with any justiciable element?
If there is to be any justiciable – ie tested on evidence – question of whether my marriage has irretrievably broken down then there must be a procedure which lets in an answer (defence, reply call it what you will); and a standard by which a judge can test the question of irretrievable breakdown. The question – what is meant by ‘irretrievable breakdown’; and how is it tested? – is not addressed by the paper.
The first stage of this is administrative; but if R contests whether or not a marriage has broken down on the new s 1 fact of living apart then that fact raises a justiciable issue, which may have to be tried; though that could still (subject to appeal) be dealt with by an administrator (ie not a judge in a court). This needs consideration in any new legislation.
To suggest that behaviour such that a couple cannot live together (MCA 1973 s 1(2), and in Owens) or living apart for a period (one year was proposed by Family Law Act 1996 Pt 2) may be thought old-fashioned; but could that be a starting point for saying a marriage has irretrievably broken down?
The present law is the same as is proposed in the consultation. ‘Irretrievable breakdown’, in 1969, seemed very modern. It reflected the fact that breakdown is often six of one and half-a-dozen of the other; at least that what I was taught at Law School. The reformers, however, had to find a way to deal with cases where that was not enough (and to answer those who opposed divorce on demand): they came up with the DRA 1969 s 2(1) ‘facts’. In 2018 the Minister of Justice will have to find a basis for proof that a marriage has irretrievably broken down, just as the reformers did in 1969.
A ground for divorce, with proof of breakdown
Divorce could be permitted on both parties agreeing that their marriage had irretrievably broken down, and upon filing a suitable notice/application in a Register Office.
If parties do not agree, the marriage can be dissolved on proof by one that both had been living apart for one year or more. A clause proposing simple amendment to MCA 1973 s 1 is set out at the beginning of this article (drafted originally just after Owens had been heard in the Court of Appeal). The passages underlined replace (ie amend) the present section 1. Irretrievable breakdown, and the ‘facts’ on which it is proved, go (in that respect, not unlike the government’s proposals).
Two facts on which irretrievable break down is based emerge from this:
- Either parties can together consent to a dissolution; or
- They can ask for a divorce, without consent of the other, after a year of living apart for a year.
I hope this would provide a simple means, without the need to allege fault, for parties to dissolve a dead marriage; and then to look forward to their respective futures, not back in prolonged litigation to what went wrong with their marriage.
For now an amendment to MCA 1973 s 1 is as in the draft clause at the beginning of this response: the facts on which you prove divorce are (1) consent (ie immediate divorce on joint demand) or (2) living apart for a year. If it was (2), R could only argue that living apart had not started when P said; and, failing that, divorce would follow after the one year period.
Whether this meets the welfare need of children – so far as this is necessary outside the mostly excellent Children Act 1989 and which Lord McKay’s convoluted 1996 Act was hoped to do – is another question. The paper does not in any real way address the welfare of children. Does it need to?