Difficulty in divorce?
In her ‘Analysis: Owens v Owens - the difficulty in divorce’ Lucy Bridger discusses why, she says, Owens v Owens  UKSC 41,  AC 899,  2 FLR 1067 highlights the need for Parliament seriously to reconsider the long standing campaign for ‘no-fault divorce’. She urges that Matrimonial Causes Act 1973 (and Civil Partnership Act 2004) be amended. No specific amendment is offered. (I don’t criticise that overmuch: I’ve not seen any amendments proposed. My own proposal – available in eg New law Journal since the Court of Appeal decision and variously since then – is below.)
Lucy goes on to say that without reform: ‘the risk remains that family solicitors are forced to use more extreme examples of unreasonable behaviour in order to cross the threshold, thereby unnecessarily increasing the animosity between the parties’. If this is what family lawyers are doing they have been taken in by the reformers’ hype, and have not – I fear – properly read Lord Wilson’s lead judgement.
‘Inquiry’ and an ‘anodyne petition’
What Lord Wilson says will be summarised in the Family Court Practice 2019. On alleged breakdown of a marriage under MCA 1973, s 1(3), in relation to a s 1(2)(b) petition, ‘the court’s inquiry’, says Lord Wilson (at ) proceeds as follows:
(1) ‘By reference to the petition, the court must “determine what the respondent did or did not do”;
(2) ‘The court assesses subjectively “the effect which the behaviour had upon this particular petitioner in the light of the latter’s personality and disposition and of all the circumstances in which it occurred”; and
(3) ‘In the light of these two assessments, the court must evaluate whether “an expectation that the petitioner should continue to live with the respondent would be unreasonable”.’
All this follows what Lord Wilson summarises as ‘an appropriately anodyne petition’ (at ) (containing five allegations) which can be amended if a respondent spouse defends (as Family Court Practice has long counselled). Owens proceeded on the basis of a narrow range of allegation and no corroborations.
That is not to say that the law does not need reform: blame must be eliminated. A period of living apart should suffice; with availability of an application for financial relief in the living apart period.
It must please be recalled, in the meantime: (1) that Lady Hale would have allowed Mrs Owens’s appeal; and (2) that as the law (substantive and procedural) now stands, what was said in Owens – on Lord Wilson’s view – does not create any need for drafting which is any more apocalyptic than existed before Owens. Basic rules of pleading apply for divorce petitions as for any other court document; and rules as to amendment have not changed (FPR 2010 r 7.13).
And if any reform is proposed by the Lord Chancellor: below is a redraft of Matrimonial Causes Act 1973 s 1 (which his divorce reform consultation https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/supporting_documents/reducingfamilyconflictconsultation.pdf proposes) I do urge the Lord Chancellor to recall that fairness (European Convention 1950 Art 6) still demands that, if one spouse or civil partnership disagrees with what another spouse etc says, they are entitled to be heard (audi alterem partem).
The consultation implied that – understandably, but unlawfully – no opportunity to defend allegations of breakdown would be allowed. For example, a respondent spouse might say the couple have not been living apart for a year, or – indeed – at all (if the one year ground is chosen). That is not ‘blame’: it is a matter of fact. A judge may have to decide between two versions of what is said to be the position.
Draft clause 1: DIVORCE REFORM BILL
1 Divorce on breakdown of marriage
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—
[[ie delete the five facts at MCA 1973 s 1(2)(a)-(e)]]
(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. [[ie delete s 1(5) which deals with decrees absolute, now 6 weeks for a decree nisi]].
David Burrows is a solicitor advocate, trainer and writer; a founder contributor to Family Court Practice; consultant with Heaney Watson, solicitors; the author of Evidence in Family Proceedings (Family Law, 2016). He is a New Law Journal columnist and regular contributor to Family Law and other publications.