A fine ceremony but no marriage… Part 2

 

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Modern divorce and the Marriage Acts

 

In Part 1 of this two post series, I pointed out that – as ever – to be divorced you must be married. For a variety of rights, a marriage must be proved. I looked at this issue in the context of HM Attorney General v Akhter & anor [2020] EWCA Civ 122 (14 February 2020) which had been reported a couple of days before my post. The case consigns another group of racially diverse couples to the lottery – relative to Matrimonial Causes Act 1973 (MCA 1973) principles – of cohabitation law on relationship breakdown.

 

We have a Divorce, Dissolution and Separation Bill which is making its way through Parliament. It will amend MCA 1973. It will remain English law that a marriage (or civil partnership) and its dissolution will lead the parties, as of right, into the assembled financial remedies available under MCA 1973 and Civil Partnership Act 2004. The same remedies are not available to those who live together even though they may have gone through a ceremony which, according to their own religion or customs, treats them as marriage.

 

In AG v Akhter the Court of Appeal went back to the Marriage Acts (recalling the analysis set out by Moylan J (the same judge, and as he then was) in A v A (below)). They traced what the ceremony in law which defines marriage, and then asked where marriage law left the parties on the facts in this case. Nasreen Akhter is not married to Mr Khan – not even ‘non-married’ as Williams J had held.

 

This has consequences not only in matrimonial law, but also in some areas such as inheritance law and administrative law (benefits etc); and those consequences apply not only for Mrs Akhter but to many other is her position.

 

First it is necessary to define what is and is not marriage. As far as the present divorce reform bill is concerned, nullity stays as in Matrimonial Causes Act 1973; though it remains to be seen whether rules will provide that a spouse against whom irretrievable breakdown (the proposed amended MCA 1973 s 1) is alleged wishes to assert nullity as a basis for ending the marriage; or that marital status is in issue under Family Law Act 1986 s 55 (as now).

 

Within or outside the Matrimonial Causes Act 1973 pale

 

Divorce may be simplified by the proposed divorce reform bill; but the fact is that there is a growing proportion of contested family breakdown cases which are dealt with by family courts on grounds other than divorce. They are outside protection of the MCA 1973 pale. Many forms of financial provision depend of whether or not spouses are married (and mostly if will be the wife who is at a disadvantage): benefits claims, insurance, intestacy, claims under Inheritance (Provision for Family and Dependants) Act 1975 (claims to the estate of a dead spouse) under the 1973 Act. And this is so even though a wife may have thought throughout her ‘married’ life that she was validly married in English law to the man she lived with, and the father of her children.

 

In many such cases, the issue – as in Attorney-General v Akhter – is there a marriage at all? 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(above); 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.

 

  • (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 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 is void, but only where ‘knowingly and wilfully’ undertaken (see eg A v A (above) and CAO v Bath (above).

 

A marriage is void under Marriage Act 1949 where it does not comply with one or more of the celebration of marriage conditions in s 49 which include: ‘(a) without having given due notice of marriage to the superintendent registrar’, and ‘(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’. Consolidated 1949 (ie much older than that date suggests), MA 1949, at least 20 years older than DRA 1969, is surely much more due for reform that our divorce laws?

 

Marriage: valid, presumed, void – or ‘non-marriage’…

 

The cases cited above testify to the importance of the validity of a marriage in different contexts. Each shows the judiciary adopting a purposive approach to the question of whether a marriage is valid, can be presumed or is void. A void marriage brings the couple within the financial provisions of MCA 1973 Pt 2. A non-qualifying ceremony leaves the couple – and their children – outside the 1973 Act.

 

CAO v Bath (above) arose when Mrs Bath claimed widow’s benefit after a marriage of nearly 40 years. The DSS refused payment. It was said the couple were not married. The Court of Appeal upheld earlier tribunal and commissioner’s decisions over the Department’s appeals. As had done the Commissioner below, they found that a presumption of marriage applied where a couple had lived together where statute did not deny the existence of a marriage.

 

A v A (above) found that though elements of the couple’s Islamic marriage did not comply in full with statutory requirements of MA 1949, their ceremony was sufficient to bring the marriage within the scope of the 1949 Act (see [100]). The marriage should only be declared void – the couple sought a FLA 1986 s 55 declaration – if statute positively said that it should be so regarded. Moylan J explained this: ‘[102] Applying the approach which has been maintained since the beginning of the 19th century, a marriage will only be held to be void if this is expressly provided by the statute (see MA 1949 s 49). Because the parties did not knowingly and wilfully marry in breach of the requirements of the [1949 Act] the marriage is not void.’ This couple seems to have applied under s 55 and in the context of divorce proceedings (see below).

 

Procedure for establishing, or not, the validity of a marriage

 

So how does a party, for whatever reason, establish validity, or not, of a marriage? Two main routes are available under the law as it now stands.

 

  • An answer to a MCA 1973 petition (though this route will not be easily available under the new divorce bill); and
  • An application for a declaration of marital status under Family Law Act 1986 s 55.

 

It remains to be seen how the rule makers deal with (1) when the new divorce reform bill comes into effect. Family Law Act 1986 s 55(1) provides for a variety of bases for dealing with marital status including: that the marriage was valid at its inception (s 55(1)(a)); that it was valid from a later date (s 55(1)(b)); that it ‘did not subsist’ (s 55(1)(c)); or that a foreign divorce is or is not entitled to recognition (s 55(1)(d) and (e)). In A v A the case proceeded, successfully, under s 55(1)(a) (with both spouses supporting the claim; though also seeking a MCA 1973 remedy afterwards). The issue may be raised and determined in an administrative tribunal (First-tier Tribunal with appeal to Upper Tribunal as is now the law: Tribunals, Courts and Enforcement Act 2007). This was the basis of the Court of Appeal being involved with Mrs Bath in CAO v Bath under the then appeals structure of DSS appeals.

 

There will be many cases in today’s secular and multi-cultural society that demand a decision on whether there was a marriage or civil partnership at all – for divorce (or nullity), pension, immigration or other purposes; and this will be before any question of divorce can be considered. Whether the marriage issue is resolved in FLA 1986 s 55 declaration, MCA 1973 (divorce nullity etc) or administrative tribunal proceedings will depend on the personal circumstances of the couple concerned and why the existence of a marriage (or not) needs to be determined.

 

Divorce law reform is needed; but our law needs also to look at the more diverse – and complex, as the common law and marriage laws have made it – question of what is a marriage. Divorce by any process (the one we have now or another under any new Act) is still a divorce. The benefits to a spouse under MCA 1973 are all there. If you are not married – though you thought you were by the ceremony performed to wed you – no amount of law, at present, will provide you with the benefits available on divorce or otherwise to formerly married spouses.

 

David Burrows

2 March 2020

 

Privacy, the common law and a celebrity divorce

Court divorce papers: how private?

 

Under the headline ‘Jamie and Louise Redknapp’s divorce papers to be kept secret as a judge blocks the release of documents’ the Transparency Project reported last week-end that a London court had ‘blocked the release of papers that would normally be made public and he has not given a reason why’. The Daily Mail, TP said, had complained: ‘A judge has thrown a blanket of secrecy over the’ couple’s divorce. TP replied resolutely:

 

‘What rubbish. A judge has probably refused to allow the press access to something that they weren’t entitled to in the first place and that they knew and the judge knew and we all know probably contains nothing of… public interest. What do the Family Court rules (FPR) allow the press to see? The short answer can be found in rule 29.12 which basically says – if you aren’t involved in the case you can have nada, unless the judge agrees.’

 

I do not believe the answer is as simple as that. The question of release of these documents involves a legal whirlpool fed by at least three conflicting cross-currents:

 

  • The open justice principle
  • That court rules cannot change existing law or create new law
  • The meaning of ‘privacy’ in 2018

 

Privacy, in the case of a ‘celebrity’ – as Mr and Mrs Redknapp are described – creates its own subsidiary question: to what extent is ‘privacy’ consistent with the symbiotic relationship between press and people like the Redknapps?

 

Open justice principle

 

The common law applies to all aspects of English law, save where it is changed by statute. In R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343 the Court of Appeal considered whether a newspaper could have released to it papers considered by a magistrate’s court district judge in relation to extradition proceedings. The judge said she could not release papers; and the Divisional Court agreed with her.

 

Toulson LJ gave the main judgment in the Court of Appeal which he started as follows:

 

[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes—who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’

 

Toulson LJ continued

 

[2] This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice…

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

 

And in Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 AC 697 (a case about anonymity and terrorism) Lord Roger commented:

 

[63] What’s in a name? ‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed.

 

Press freedom and privacy call for a balance to be struck.

 

Human rights

 

To affirm all this, not only does the common law open justice principle ‘let in the light and allows the public to scrutinise the workings of the law, for better or for worse’ (see Toulson LJ above); but it is demanded by European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Art 6.1. This requires all court hearings to be in public; but with certain limits. These limits are summarised in the latter part of Art 6.1 as:

 

1 … The press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

 

In English common law the position is best summarised by CPR 1998 r 39.2(3); and for this article it is suggested that these limitations operate for all court proceedings (criminal, civil or family). If a case comes within this list application can be made to claim privacy for any hearing, even though it might otherwise have been heard in public:

 

(3) A hearing, or any part of it, may be in private if –

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party; … or

(g)the court considers this to be necessary, in the interests of justice.

 

Privacy is bolstered by European Convention 1950 Art 8, that: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.

 

However, the right – countervailing that of privacy – is for all of us, that of ‘freedom of expression’ (Art 10). This protects private individuals, press and social media alike. Thus, ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…’.

 

None of these takes priority one over the other (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591); but it is clear that the courts will generally strongly influenced by the Convention emphasis on freedom of expression (Human Rights Act 1998 s 12(4)).

 

Rules cannot change the law

 

The second cross-current is that a court rule cannot change the law. Family proceedings are governed by Family Procedure Rules 2010 which are written by a group of civil servants and practising lawyers (given powers to do so by Courts Act 2003 ss 75-76). They are not considered by MPs but are dealt with by the negative resolution procedure (Courts Act 2003 s 79).

 

The aim of the rules is to define how courts should apply the law (procedure). Whether or not documents (eg a divorce petition) should be released to a non-party is an example. If a rule says something different from the common law, the rule is wrong; and there is certainly nothing in those rules ‘expressly permitting’ that the rule makers can alter common law principles.

 

That this is not possible, constitutionally, is confirmed by for example Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 where Lady Hale in the Supreme Court said:

 

[27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210.

 

Generally proceedings under FPR 2010 are heard in private (FPR 2010 r 27.10); unless the rules say something else. Proceedings under FPR 2010 Pt 7 (mostly for divorce) are to be heard in open court (r 7.16(1)), save in the circumstances listed in r 7.16(3) (which provides a list similar to CPR 1998 r 39.2(3)) which sets out when court hearings, otherwise open, may be in private.

 

This is openness subject to the condition that only certain information may be publicised by the printed press (publisher or printer) Judicial Proceedings (Regulation of Reports) Act 1926 s 1(1)(b). But what is meant here by a ‘hearing’ and, subject to that, what documents can be released to those who attend court?

 

A side comment on this is provided by r 29.12(2). If there has been a hearing in open court anyone can ask for a copy of the order made. In the case of divorce proceedings this is unremarkable. A divorce order is in rem: it speaks to the world. This tells us nothing about whether, for example, a journalist can obtain a couple’s divorce petition and if so, to what extent his or her newspaper can publish anything.

 

If the journalist can obtain documents – as could the Guardian in the Westminster Magistrates’ case – is it consistent with the right to respect for a couple’s private life that they should be allowed to publish (European Convention 1950 Art 8.1; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457)? If no, does it make any difference that one or both of the couple concerned are ‘celebrities’ (ie spend much of their life developing a symbiotic relations ship with the press, as in Naomi Campbell’s case)? Probably not; but this is part of a much wider subject, and must be the subject of a separate later article. In the meantime, what can be released to non-parties: that is to anyone who is not a party to the proceedings?

 

Divorce papers and release of hearing documents

 

What court documents – such as divorce papers which set out why one party says he or she should not have to live with the other – should be permitted for release? The law is unclear on this (as explained in my ‘Release of family courts hearing documents’).

 

Here an odd statutory side-wind blows in. Even if a journalist sits in court for a divorce (and very few divorces are ever heard in open court, since only defended divorces involve a full hearing) he or she still cannot publish any but the most basic information about the proceedings. A little known statute – Judicial Proceedings (Regulation of Reports) Act 1926 (considered more fully here) – at s 1(1)(b) says that a newspaper or printer who publishes anything about a divorce except basic information (such as names, addresses etc of the parties and details of legal argument and judgement), may be prosecuted (if the Attorney-General agrees). This was at a time when radio (‘wireless’ as it was then) journalism was little known; and television and social media not dreamed of. Only print media are caught by s 1(1)(b). It does not catch the rest of us nor other media.

 

What we know so far is that court orders can be released and that court hearings are in open court. The law is that a non-party – such as the Mail – must apply for documents. This was established by the Guardian v Westminster case; and backed up by NAB v Serco Ltd & Anor [2014] EWHC 1225 (QB), Bean J. If application is made, the Mail must explain why it wants the documents. As Toulson LJ (with whom Lord Neuberger LJ and Hooper LJ agreed):

 

[85] In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons…. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.

 

It may be worth adding that as Hooper LJ pointed out (at [95]), the position on disclosure in criminal proceedings (then Criminal Procedure Rules 2011 r 5.8(7) now 2015 r 5.7(5)) is:

 

If the court so directs, the court officer will— (a) supply to the applicant, by word of mouth, other information about the case; or (b) allow the applicant to inspect or copy a document, or part of a document, containing information about the case.

 

This is supplemented, as Hooper LJ points out, by a note that the supply of information may be affected by European Convention 1950 Arts 6, 8 and 10 ‘and the court’s duty to have regard to the importance of— (i) dealing with criminal cases in public, and (ii) allowing a public hearing to be reported to the public’. It will be recalled that, as ever, it is the same common law which regulate criminal and family proceedings.

 

If the Mail gets them, they cannot print more than names, addresses and the judgment. So far as rules say anything else – eg that non-parties cannot even apply for documents or information (which some judges think is what the law says) – the rules are unlawful. Guardian v Westminster makes it clear that the court must consider any application and deal with it on its merits and according to the individual facts of the case. In the case of the Redknapps the district judge had to make deal with the application and give reasons for his decision (FPR 2010 r 27.2(3)).

 

Privacy and the ‘celebrity’ divorce

 

The basis for that district judge decision brings in the final cross-current: privacy. This is a relatively new principle of English law, derived partly from our common law rules about confidentiality and partly from European Convention 1950 law. It was most famously considered in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 when Naomi Campbell was photographed leaving a Narcotics Anonymous meeting; and the House held (3:2) that her privacy had been breached. Secretly the Mirror had arranged for photos to be taken of her. These were published them with further stories about her drug habit (which up till then she had publicly denied). She was awarded £3,500 damages.

 

The House asked: what privacy was she entitled to expect, even as a very public person (‘celebrity’) and although the Mirror were putting the record straight on her drug habit. Despite these two points, there was an extent to which she could expect privacy said the two lords and a lady. If I were asked I would say the Redknapps were entitled to privacy with their divorce papers; and that the district judge could say so.

Rights and an English divorce

Mrs Owens and the Supreme Court

 

Mrs Owens has been given permission to appeal to the Supreme Court. She is challenging the decision of a circuit judge and the Court of Appeal (Owens v Owens [2017] EWCA Civ 182, [2017] 4 WLR 74) to find that, though her marriage had unquestionably broken down, she failed to prove that her husband had behaved in a way which showed that she could not reasonably be expected to live with him.

 

The relevant law is set out at Matrimonial Causes Act 1973 s 1. There is one ground for divorce: either party to a marriage can petition for divorce (A) ‘on the ground that the marriage has broken down irretrievably’; but a court can only say there is irretrievable breakdown if one of five ‘facts’ are proved including (s 1(2)(b)): ‘that the respondent [(B)] has behaved in such a way that [A] cannot reasonably be expected to live with [(B)]’.

 

Though they considered that Mrs Owens’s (ie A’s in her case) marriage had broken down irretrievably, the Court of Appeal felt unable to say that she could not be expected to live with Mr Owens (see eg comment at ‘Owens: a dead marriage but no divorce’ [2017] New Law Journal 31 March, David Burrows; and here). The logic of the court’s conclusion, based only on the words of s 1, is difficult to follow. But what of its logic, in terms of Mrs Owens’s personal – or ‘human’ – rights (under European Convention 1950 and generally)?

 

European Convention 1950 and Mrs Owens’s rights

 

In Owens Sir James Munby P commented on Mrs Owens’s advocate’s assertion that European Convention 1950 Arts 8 and 12 supported her case. He said, of Mr Owens’s reply to this assertion, with which he agreed, that there is ‘no Convention right to be divorced nor, if domestic law permits divorce, is there any Convention right to a favourable outcome in such proceedings’.

 

Art 12 declares that those of ‘marriageable age have the right to marry’; and nothing is said of divorce. Art 8 deals with respect for a person’s ‘private and family life [and] his or her home’. Sir James described Mrs Owens’s advocate’s argument under Art 8 as:

 

[54] … He invites us to consider what level of ‘fault’ must be established to obtain a divorce and whether dispositive, or at least greater, weight should be given to the petitioner’s wishes and feelings. More profoundly, he invites us to consider whether the requirement to prove ‘fault’ is consistent with Articles 8 and 12

 

If this was the advocates’ argument it was, indeed, an odd line for him to take. Section 1(2)(b) does not require anyone to prove ‘fault’. It asks an open question: has a spouse behaved in such a way that the other spouse cannot live with her or him? That need not be because they are at fault. It requires proof only that B has acted in a way that A ‘cannot reasonably be expected to live with’ B. A must be able to say that her marriage is dead (as in the Owens case, and as the court found). Each party surely should then be able to move on?

 

Respect for ‘private and family life’: rights to privacy

 

If European Convention 1950 is necessary to all this, Art 8 seems to me to be relevant. I cannot see that Art 12 has any relevance. It is difficult to see how respect for a person’s ‘private life’ (‘private and family’ are disjunctive: they mean two different things. They are not both part of the same concept) is consistent with requiring either party to a dead marriage to going on living with the other spouse (as the court knew was likely to be the effect of their decision for Mrs Owens).

 

Looked at as a question of right separate from European Convention 1950, it is necessary to find a duty to which the right is corollary (or reflective). Do I have a duty to live with someone I no longer want to share a home with? If there is no marriage the answer is resoundingly: no. If I am married to that person, why is my duty any different? If it is different, does not the right not to be discriminated against (Art 14) apply (marriage is an ‘other status’ as referred to in Art 14).

 

In law spouses must make arrangements for financial support for one another (or the court can order it: Matrimonial Causes Act 1973 Pt 2). That is a statutory duty bred of a right to financial support from the weaker spouse (the same does not apply if we are not married). That right would be protected – enhanced even – if Mrs Owens’s marriage is dissolved.

 

But to find – as did the Court of Appeal – a right vested in Mr Owens to expect of Mrs Owens a form of conjugal cohabitation (and thus no right in Mrs Owens to claim financial support till her marriage is dissolved) is not in any statute. Is such a right implied by English law? That it is, is the logic of the Court of Appeal’s decision.

 

Does the requirement to live in an unwanted and loveless relationship interfere with a person’s ‘family life [and] home’? Common sense – and, it must be hoped, the law – must surely say ‘yes’? If MCA 1973 s 1(2)(b) says what the Court of Appeal says it says – and I do not think it does require them to find as they did in Owens – then Mrs Owens needs also to seek a declaration of incompatibility with her rights (in Arts 8 and 14) under Human Rights Act 1998 s 4.

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.