Law Society: thoughts on 2020 divorce reform


‘Three months reflection’


In ‘Ending the “blame game”’ in the Law Society’s Gazettethe Law Society president, Mr Simon Davis explains the Society’s support for the divorce on demand scheme proposed by the Government in its Divorce, Dissolution and Separation Bill.


Mr Davis proposes ‘a three-month reflection period at the beginning of proceedings – without any non-urgent financial discussions – [which] would give couples enough time to consider their situation, attend mediation, seek the legal and financial advice they need or engage marriage counselling’. The Law Society have answered the government’s question 5 about the length of its 26 reflection period in ‘Law Society response Reform of the legal requirements for divorce December 2018’; but there is no mention of the three month idea there.


Is it a new proposal? With more detail it may prove to be an excellent idea. Is it Law Society policy? Three months from when; how does it fit into any period – normally 6 months – proposed by the bill? How is the period activated and how proved?


The bill’s Henry VIII powers: validity of a statutory instrument


A day before Mr Davis’s article the Law Society’s Gazette reported: ‘Peers alarmed at Henry VIII powers in divorce bill’. Henry VIII powers were described by Lord Neuberger in R (The Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] 1 AC 1531, [2016] 3 WLR 387, adopting Craies on Legislation (10th ed (2015)), edited by Daniel Greenberg), para 1.3.9, as [25] ‘“[It is] used to describe a delegated power under which subordinate legislation is enabled to amend primary legislation.” When a court is considering the validity of a statutory instrument made under a Henry VIII power, its role in upholding Parliamentary supremacy is particularly striking, as the statutory instrument will be purporting to vary primary legislation passed into law by Parliament.’


As drawn, the bill sets out the sole ground for divorce, as now, namely irretrievable breakdown of marriage or civil partnership as a simple amendment to each of Matrimonial Causes Act 1973 s 1 and Civil Partnership Act 2004 s 37. A fundamental aspect of the new divorce scheme was to be a statutory period of six months after application for a divorce. As Mr Davis says at present this appears to run from registration of an application. The amendment s 1(1) is not entirely clear on this point. For divorce it reads:


Divorce on breakdown of marriage

(1) Subject to section 3, either or both parties to a marriage may apply to the court for an order (a “divorce order”) which dissolves the marriage on the ground that the marriage has broken down irretrievably.


By contrast, s 1(5) regulates the date from which the 20 weeks for a conditional order (decree nisi) from ‘the start of the proceedings’. Mostly ‘start of proceedings’ is when they are issued at court (eg for statutory limitation of periods for issue of civil proceedings); but is this what the authors of the bill mean? If Mr Davis’s assumption as to the meaning of s 1(1), it is certainly troubling.


As the bill is drawn now, the applicant – or joint applicants if both spouses apply – must wait 20 weeks from issue for a conditional order (formerly decree nisi) and then another 6 weeks after that for final order (decree absolute). As I read the bill – and I think Mr Davis would agree – you could be divorced and not know about it.


Variation of statutory periods


The proposed s 1(6)-(8) gives the Lord Chancellor power to alter periods – the 20 weeks and 6 weeks – in the bill. The Ministry of Justice’ January 2020 memorandum on any proposed statutory instrumenton this justifies s 1(6)-(8) by pointing out that ‘a new minimum timeframe of 26 weeks for the legal process for divorce [comprises] two stages’: s 1(5) sets a minimum period of 20 weeks for this stage; and then to s 1(4)(b) which prescribes a minimum period of six weeks for this stage. The Ministry want to allow for flexibility for [the] time period to be adjusted without recourse to primary legislation, as Parliament has long allowed in MCA 1973 s 1(5) and CPA 2004, they say.


This ‘justification for the power’, says the House of Lords, is ‘very weak … for Henry VIII powers’ (report on the bill, 19 February 2020). I agree. The justification is muddled:


  • Only s 1(4)(b) (conditional order to final order) is truly comparable with the present MCA 1973 s 1(5)/s 38(2) (decree nisi to decree absolute). Section 1(5) (in the bill: ie 20 weeks) has nothing to do with all this. A justification based on MCA 1973 s 1(5) wrongly conflates two different periods in respective statute and bill.
  • ‘Policy considerations’ are given as a reason; but what ‘policy’ where Parliament has called for 26 fixed (minimum); and for reasons explained in Reducing Family Conflict of 2018? No such ‘considerations’ are given still less explained. Or has Parliament changed its mind?
  • The memorandum writer does not appear to take account of s 1(8) which says: ‘In a particular case the court dealing with the case may by order shorten the period that would otherwise be applicable for the purposes of subsection (4)(b) or (5).’


Does it matter? Dissolution on demand may be a good thing (that debate is pretty much over). Irretrievable means irretrievable, which is a truly modern and inflexible approach. The scheme is to be administered by the courts; but the only matter which remains justiciable under the bill is the s 1(8) power for the court to shorten the period of 26 weeks till final order.


Tini Owens and divorce reform


As ever, the martyred Tini Owens is wheeled out by Mr Davis. She climbed the divorce reform stake, and was burned for all those proposed non-blame applicants. Mr Davis describes this as that she ‘made newspaper headlines across the country when the Supreme Court refused to grant her a divorce’. That is true. Mr Davis goes on: ‘As her husband did not agree to the divorce and she could not prove a fault-based fact, the court ordered the couple to spend five years separated before filing for divorce – forcing Mrs Owens to stay in an unhappy marriage.’


That is not true Mr Davis, as I am sure you know? The court has no power so to ‘order’. Her divorce – as Lord Wilson pointed out – was badly pleaded on basic points. A trainee unsupervised should not have committed some of the errors; and counsel (who was retained) should not have let Mrs Owens go so forensically naked into a contested divorce hearing. An example (clear from Lord Wilson’s judgment): any litigator knows that to prove contested facts you need some corroboration. The unfortunate Mrs Owens, it seems, was not told that.


Mrs Owens could easily have proved a fault-based divorce when her divorce petition was rejected. She chose only to pursue a limited number of grounds. Since so little, relatively, was pleaded first time around she could probably have petitioned again, or on facts since the first petition (subject to Henderson v Henderson (1843) 3 Hare 100 Wigram V-C at 115). The truth about Mrs Owens’s failed petition should be acknowledged. That can be done on the basis of Lord Wilson’s findings, as I read them.


Lawyers, the courts and divorce work


On divorce alone there will be no work for lawyers to do under the proposed bill, save to fill in the right forms and register them in the right office (called a ‘court’ in the bill). If contention is removed from this area of family breakdown, it is surely a good thing. I still worry at the autocratic assertion that irretrievable breakdown means irretrievable breakdown. Are there not cases where breakdown may not be beyond recall?


If Mr Davis’s point about a three month delay before filing – have I read that correctly? – is right, then proof of irretrievable breakdown may not be as dogmatic as now under the Act. Or is the three month idea already too far down the flood for it to be retained as a realistic proposal?


For now, it remains the fact, as I read the bill, that the only remotely contentious question requiring the attention of a judge is under the proposed s 1(8): should the court reduce the period – normally 26 weeks – before a conditional order can be finalised and the parties divorced? We do not know on what grounds such an application may be made. Probably they will be few. There will be little or no work to sustain lawyer’s divorce and civil partnership dissolution work.


David Burrows

22 February 2020


What does ‘irretrievable breakdown’ mean as a ground for divorce?

20160419_170156Irretrievable 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 [2018] UKSC 41, [2018] AC 899, [2018] 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.

Divorce reform: Lord Chancellor’s response – first thoughts

20160419_170156Response to consultation


In the Lord Chancellor’s Reducing family conflict Government response to the consultation on reform of the legal requirements for divorce, Ministry of Justice, April 2019 (‘the Response’) he sets out his concerns that the law be used to minimise ‘the potential for couples to entrench positions as against each other’ (p 3) and to reduce the damage for children involved. That said, mediation for families receives no serious consideration in the Response. Absence of support for mediation in relation to a document which deals with family breakdown is disappointing.


I entirely accept that fault should be eliminated from the divorce process. However to say that an assertion proves that assertion (of marriage breakdown, in this case), as does the Response, and to retain judges to adjudicate (but adjudicate on what?), with only infinitesimal right of challenge feels illogical.


That said, I accept that all that follows awaits legislation and detailed court rules. No draft bill accompanied the Response. How much of what is proposed will be in statute, and how much in rules (probably in Family Procedure Rules 2010 Pt 7) remains to be seen. Aspects of what the government propose appear still to be under review.


Two aspects of the proposed reforms will be considered here:


  • The ground for divorce
  • The ‘removal of the opportunity to contest’


Grounds for divorce


The central passage of the Response recommends that irretrievable breakdown should remain the sole ground for divorce, as now; but that this should be based on a ‘notification’ process. The court should remain involved; but the judge has no adjudicative capacity since no issue on which a judge is required arises (save on eg jurisdiction and validity). The response at p 26):


We propose that the legal process for ending a marriage or civil partnership should start with a statement that the marriage or civil partnership has irretrievably broken down. In the consultation paper we in places referred this as a “notification” process…. We are clear that the decision to grant a divorce remains a legal decision for the court to make.


The Response goes on to identify matters to be dealt with by the judge: ‘A divorce is a fundamental change of legal status that will alter people’s rights and responsibilities’. But to what extent, and on what evidence, will judges check up on these things? The Response particularly mentions:


  • Whether the court has the jurisdiction to grant a divorce,
  • Is there a legal marriage for it to dissolve?

‘These are important legal safeguards’. So they are, especially in a jurisdiction where the sole arbiter of marriage is a 70 year old consolation statute (Marriage Act 1949) which dates back to the eighteenth century. So says the Response:


Where these legal safeguards are met, we propose that a statement to the court from one party to a marriage that the marriage has irretrievably broken down should be sufficient on its own to satisfy the legal threshold for obtaining a divorce.


But has the Lord Chancellor thought about how these matters will be checked administratively? Will an applicant have to satisfy the court administration before filing a statement? And what of collusive statements (eg to evade immigration rules)? How will this be dealt with in a system which says any ‘opportunity to contest’ is removed?


Challenge to the divorce application


The default position of the Response is that any challenge to a ‘notification’ statement should be excluded (p 29):


The Government therefore continues to believe that the ability to contest a divorce on other bases, such as disagreement with the other party’s decision to divorce, does not serve the interests of either party.


The law remains as now on ‘void marriage’ and ‘non-marriage’. There must be potential at least to reply on that basis; but how will that be dealt with? To a degree this last point is answered by the Response (at p 29):


In all cases, a divorce application could still be challenged on the bases of jurisdiction, validity of the marriage, fraud or coercion and procedural compliance. The court’s power to refer matters to the Queen’s Proctor also strengthens this safeguard.


There remains something uncomfortable about a court being required by statute to accept a statement from one party, where the other’s right to reply is highly restricted. Some basis for irretrievability (say living apart for a period) would give it substance beyond what could sometimes be little more than one party’s whim.


If the court is to remain involved in this proposed dissolution process, then it must be recalled that two of the fundamental bases of natural justice are notice and hearing both sides (audi alterem partem). Notice will be established by rules as to service. A legal system which only enables a party to state facts – it is irretrievable breakdown because the applicant says so – makes the court just a registrar. To say that that highly subjective assertion has in addition to be proved by a simple fact, capable or verification or corroboration (and of being denied by a respondent in those rare cases where there was doubt as to the fact) – would surely be more fair?


If the court is to be a registrar of divorce only, let us say so. No doubt a computer can be harnessed appropriately. If a divorce issue arises, or (say) the Queen’s Proctor becomes involved, then access into the court system can be arranged.

Divorce reform, but no more…

20160419_170156Reform of ground for divorce: when there’s time…


The Lord Chancellor has produced a response – a press release promising reform of divorce law – following his consultation on divorce law reform last Autumn.


Proposals for changes to the divorce law (and parallel civil partnership law), we are told, will include:


  • retaining the irretrievable breakdown of a marriage as the sole ground for divorce
  • the requirement to provide a statement of irretrievable breakdown
  • retaining the two-stage (decree nisi and decree absolute0 process for final dissolution
  • possibility for a joint application for divorce, alongside retaining the option for one party to initiate the process
  • removing the ability to contest a divorce
  • introducing a minimum timeframe of 6 months, from petition stage to final divorce (20 weeks from petition stage to decree nisi; 6 weeks from decree nisi to decree absolute).


Detail is awaited, when the full scheme is announced. This will be, we are told, when the legislative timetable permits. First thoughts include:


  • You cannot prevent someone ‘contesting a divorce’: if one spouse or civil partnership is entitled to make an assertion to the court (ie irretrievable breakdown) the other must be entitled to disagree: ie a fair trial.
  • We do not know how irretrievable breakdown will be proved (NLJ proposed a new Matrimonial Causes Act 1973 s 1 (irretrievable breakdown) in October 2018.
  • The government has been panicked into divorce reform in the wake of the Owens case (Owens v Owens [2018] UKSC 41, [2018] AC 899, [2018] 2 FLR 1067, which is a real example of poor cases making bad law: had her case been properly pleaded by her lawyers Mrs Owens could have got her divorce (see NLJ August 2018).


Marriage and cohabitation breakdown: much more is needed


That is not to say that divorce law does not need reform. It does. But so does so much more of family law on relationship breakdown, which reformers overlook in the rush to change the narrow area of divorce. And the Lord Chancellor thinks he is offering a palliative to cover a narrow area in need reform.


In the area of relationship breakdown at least the following needs urgently to be reformed:


  • Cohabitation law and financial support for ex-cohabitant (ie unmarried) partners
  • Mediation available on a basis supported by statutory funding (which is needed, also, to help children in the bitterness of relationship breakdown: one of the Lord Chancellor’s aims with his divorce legislation)
  • Rewriting of Marriage Act 1949 which seriously discriminates against many couples which are not married in a still Christian-based statutory framework.

Divorce reform, 2018 style


Reducing family conflict Reform of the legal requirements for divorce, September 2018




Divorce reform


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):




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.


Divorce reform


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 [2018] 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?



(2)        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[1968] P 482, [1967] 3 WLR 280, Ormord J; A v A (Attorney-General intervening) [2012] EWHC 2219 Fam, [2013] 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 [2018] 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 [2000] 1 FLR 8, CA; Hayatleh v Modfy [2017] 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) [2012] EWHC 2219 Fam, [2013] Fam 51 [100]-[102]; Chief Adjudication Officer v Bath [2000] 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.





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.




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?