This post has been contributed by Professor Alison Diduck, Module Convenor for Family law.
Since the Matrimonial Causes Act 1857 there have been calls for reform of divorce law. The matrimonial fault doctrine in particular has been criticised and reports leading up to and after the Divorce Reform Act 1969 were no exception. Should the law permit no-fault divorce, or should it maintain the fault grounds for divorce? So far Parliament has no intention of reviewing the law of divorce, but in Owens v Owens  EWCA Civ 182 we see the effect of the matrimonial fault doctrine in conjunction with irretrievable marriage breakdown which may encourage them to act.
The decision is here: https://www.judiciary.gov.uk/wp-content/uploads/2017/03/owens-v-owens.pdf and a newspaper report of it is here: https://www.theguardian.com/lifeandstyle/2017/mar/24/tini-owens-trapped-loveless-marriage-judges-refuse-divorce
The Court of Appeal could find no fault with the family court’s decision to dismiss Mrs Owens’ petition for divorce which she based upon the behaviour fact. Because her husband defended the petition, Mrs Owens was required to establish that he had behaved in such a way that it was unreasonable to expect her to continue to live with him. She was unable to satisfy the court of this fact, even though all concerned (except, perhaps the husband) agreed the marriage was over. The case was unusual first of all because so few divorce petitions are defended. It is also unusual because of the court’s statements made in obiter. As The President said:
the effect of Judge Tolson’s judgment is to leave the wife in a wretched predicament, feeling, as she put it in her witness statement, unloved, isolated and alone, and locked into a loveless and desperately unhappy marriage which, as the judge correctly found, has, in fact if not in law, irretrievably broken down.
In reviewing the current law, he said ‘I cannot help thinking that, if the husband had not sought to defend, the petition would have gone through under the special procedure without any thought of challenge from the court.’
After reviewing solicitors’ practice to be ‘moderate’ in their recitation of the behaviour facts, His Lordship went on:
The simple fact, to speak plainly, is that in this respect the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty. The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 Act but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of section 1(2)(b).
These are strong words and this is not the first time he has advocated for divorce reform. See a report here from 2014.
At the same time as this judgment, family lawyers also read the interim findings of a research project aiming to explore how the current law on the ground for divorce and civil partnership dissolution operates in practice.
The conclusions are striking and tell us that the concerns about divorce law over the years have not changed much at all! Some of the key interim findings are:
- The majority of divorces are based on ‘fault’, ie blaming one spouse for the marriage breakdown.
- Using fault (adultery or behaviour) means the divorce can take as little as 3 months, instead of a wait of at least 2 years.
- Divorce petitions are not necessarily accurate records of who or what caused the breakdown of the marriage. Petitions can be based on compromise statements (a ‘fudge’) designed to minimise conflict and upset, or can be just one person’s view of what went wrong with the marriage.
- The court cannot test whether allegations are true or not and petitions are taken at face value.
- The threshold for behaviour petitions appears to be lower than 30 years ago. Very few petitions appear to be rejected on substantive legal grounds, whether ‘true’ or not.
- Fault can create or exacerbate conflict. This can affect negotiations about children or finances where the law expects parties to work together.
- In reality, there is already divorce by consent or ‘on demand’, but masked by an often painful and sometimes destructive legal ritual.
- So far, there is no evidence from this study that the current law does protect marriage.
- Reform of the divorce law is long overdue. A single system of notification of intent to divorce would be clearer, more honest and neutral between petitioner and respondent.
The interim report concludes, echoing the President of the Family Division:
In reality, we already have divorce by consent or ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state. … This is a timely opportunity for law reform so that divorce is based solely on irretrievable breakdown after notification by one or both spouses.
What do you think? Perhaps now is the time for action.