‘Is it finally time to reform divorce law’?

This post has been contributed by Professor Alison Diduck, Module Convenor for Family law.

Welcome to the first blog of the year. I hope you are enjoying your family law studies.

Divorce signThe recent news in family law is all about divorce. As you know, the law of divorce in England and Wales is almost 50 years old. The Divorce Reform Act 1969 became a part of the Matrimonial Causes Act 1973 and has not been substantively reformed since 1984. This has not been for want of trying, however!

The Law Commission pointed out in in 1990 a number of concerns with the law. A new report prepared for the Nuffield Foundation by Professor Liz Trinder and her colleagues (http://www.nuffieldfoundation.org/sites/default/files/files/Finding_Fault_full_report_v_FINAL(1).pdf) summarise these as follows:

  1. Truth and honesty. There was a gap between what the law said and how the law worked in practice. This included the lack of any necessary relationship between the reason for a marriage breakdown and the Fact on which a divorce was granted, the instrumental use of fault Facts to secure a faster divorce, and that the court ‘pretended’ to inquire into allegations.
  2. Conflict and harm. Fault was seen as needlessly generating or exacerbating conflict between the parties. This was at odds with the expectation that the parties adopt a constructive and collaborative approach to child arrangements and financial remedies.
  3. Fairness and justice. It was unfair for respondents to be on the receiving end of allegations that were not properly tested and where they were extremely difficult to defend. Parties could be put at an unfair disadvantage in negotiations over children and money depending upon the facts available to the petitioner.
  4. Undermining marriage saving. Neither the fault nor separation Facts facilitated a climate of reconciliation.
  5. Discrimination. It was harder for lower-income families to use the non-fault separation grounds as they were less able to afford to maintain two households.

As Trinder and her colleagues remind us, the problems identified in 1990 are still with us. The fault based Facts account for 60% of divorces in England and Wales because they offer a means for a quicker divorce. They surveyed the law and practice of divorce and found that, because 99% of divorces are undefended and are granted after a paper-based administrative procedure, we already have something tantamount to immediate unilateral divorce ‘on demand’. ‘In practice, the petitioner’s allegations are taken at face value in undefended cases. This is so even where the respondent denies or rebuts the allegations, as occurred in 37% of behaviour petitions in our file study, without formally defending the case. All rebuttals are ignored if the case is undefended.’ (p 13)

The problem, they say, is that our virtual divorce on demand is ‘masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state.’ (p. 10).

They conclude that ‘a clearer and more honest approach, that would also be fairer, more child-centred and cost-effective, would be to reform the law to remove fault entirely.’ Such a reform sounds radical for English law, until we think about Trinder’s research and evidence from other jurisdictions which have removed fault from divorce. The question is whether Parliament finds these issues sufficiently compelling to act upon them.

In the meantime, the Supreme Court will soon hear an appeal from the case of Owens v Owens ([2017] EWCA Civ 182), where a woman was denied a divorce despite a recognition that her marriage had broken down irretrievably.

Before it does, here is a reminder of the Court of Appeal’s views of the case.

83. [t]he 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.

84. It may be of little consolation to the wife but she is not totally without remedy under the present law. If she waits until February 2020, assuming that she and her husband are still alive, she will, seemingly, be able to petition in accordance with section 1(2)(e) of the Act. Of course, the husband may seek to dispute that there has been five years’ continuous separation or to defend the petition in accordance with section 5(2) on the footing that the dissolution of the marriage would result in “grave hardship”. Both seem unlikely. It is also possible that her husband may eventually consent to a divorce on the grounds of two years’ separation in accordance with section 1(2)(d). But, unless she can bring herself within the “no fault” provisions of subsections 1(2)(d) and (e) she must remain trapped in her loveless marriage. As I observed during the course of argument, Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.

85. Such is the law which it is our duty to apply. …

93. 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.

94. 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). It is ironic that collusion, which until the doctrine was abolished by section 9 of the 1969 Act was a bar to a decree, is now the very foundation of countless petitions and decrees. (per Munby, P).

  1. With no enthusiasm whatsoever, I have reached the same conclusion on this appeal as my Lord, the President, for the reasons that he gives. It was the trial judge’s duty, and ours, to apply the law as laid down by Parliament. We cannot ignore the clear words of the statute on the basis we dislike the consequence of applying them. It is for Parliament to decide whether to amend section 1 and to introduce “no fault” divorce on demand; it is not for the judges to usurp their function. (per Hallett, LJ)

These are strong words from the Court of Appeal. We shall see what the Supreme Court makes of them!

 

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