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David Burrows assesses the government’s proposals for an overhaul of divorce law, and supplies some suggestions of his own.
The government’s divorce reform proposals represent a step closer to ‘divorce on demand’ but lack the ability to contest an assertion of fact.
An alternative suggestion: divorce could be permitted by both parties agreeing that the marriage had broken down, or otherwise on proof of living apart for one year or more.
As a founder member of the Solicitors Family Law Association (now Resolution), I have always supported a divorce law which left as little as possible to be rooted in mutual incrimination. The law reformers tried to do this in the Divorce Reform Act 1969 (DRA 1969), s 1 (‘irretrievable breakdown’); but then facts (per DRA 1969, s 2(1)) got in the way. Interestingly, the government’s recent divorce reform proposals, Reducing family conflict—Reform of the legal requirements for divorce, September 2018, Ministry of Justice, suggest the one ground for divorce: irretrievable breakdown (as now the Matrimonial Causes Act 1973 (MCA 1973), s 1(1)), again.
However, before going to the reform proposals, I will deal briefly with the fall-out from the defended divorce case of Owens v Owens  UKSC 41,  All ER (D) 144 (Jul)). In my article ‘Owens & how to plead a divorce case’, NLJ 10 August 2018, p12, I explained why Lord Wilson had ‘uneasy feelings’ and why Lady Hale would have allowed the appeal. Both made it clear that the case was badly pleaded and case managed.
I explained how the difficulties could have been overcome if parties had followed Lord Wilson’s steps for a divorce inquiry. If the divorce hearing had been case managed differently and the evidence properly marshalled at first instance, its shortcomings might have been accepted by both those very senior family lawyers (Lord Wilson and Lady Hale). Mrs Owens’s marriage might yet have been dissolved.
The government’s reform proposals
In simple terms—leaving aside legislative froth like whether there should be a one-year bar still on filing a petition and a one- or two-stage (and if so how long between stages?)—what is proposed can be stated from two paragraphs in the proposals:
that irretrievable breakdown is the sole ground for divorce etc (as now) but that you need establish no facts to prove it (pp26 and 29); and
there will be no ability of a party to contest the allegation (pp26 and 34).
No ability to contest an assertion of fact? What happens, then, if I say my marriage has ‘irretrievably broken down’ but my wife or civil partner disagrees? She or he says, our relationship is not ideal; but there is still plenty of room for bringing the relationship round. I am determined. I register my notice of ‘intention to divorce’ at the court (p30). My wife or civil partner is not permitted to contest what I say (says the consultation paper), so my word is final. In due course, regardless of other views, a decree of divorce pops into our inboxes (it’s all dealt with online nowadays).
So why doesn’t the Ministry of Justice just let me say, ‘I don’t want to be married any more,’ and that is an end of it: no court fee, no administrative process. It doesn’t matter whether my spouse or civil partner wants our marriage to subsist. That is it. And, as I read it, that is what the government proposals say…
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 wants. It may be the right thing (I am not so sure). But let us all say so.
Divorce: a justiciable issue
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. So far as I can see, the question—what is meant by ‘irretrievable breakdown’ and how is it tested?—is not addressed. 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 the 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 consultation says it does not want divorce on demand”
The present law (derived from DRA 1969, s 1) 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 DRA 1969, s 2(1) ‘facts’. In 2018, the Ministry 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. If they 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 in the table below (drafted originally just after Owens had been heard in the Court of Appeal). The passages underlined replace (ie amend) the present s 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 breakdown is based emerge from this:
either the 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.
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 (see below) is a starting point.
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 marriageAn 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 divorceThe 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— [ie delete the five facts at MCA 1973, s 1(2)(a)-(e)]
(3) On an applicationOn 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) aboveinto 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. [ie delete s 1(5) which deals with decrees absolute, now six weeks for a decree nisi].