This article originally appeared in New Law Journal
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On 17 May, the Supreme Court heard the case of Owens v Owens
. It is the first time that the ‘fault based’ divorce provisions in the Matrimonial Causes Act 1973 (MCA 1973) have been considered by the highest court.
The case is of huge significance to divorcing couples, and to the professionals who advise them. Resolution, the representative body for family justice professionals, intervened (full disclosure: the author is Treasurer of Resolution).
The Supreme Court considered the correct interpretation of s 1(2)(b), MCA 1973, which sets out the basis for divorce commonly referred to as ‘unreasonable behaviour’. Specifically, the court considered the extent to which the statute does or does not in fact require someone seeking a divorce to prove that his or her spouse’s unreasonable behaviour has caused the irretrievable breakdown of the marriage.
It could be said that the very concept of unreasonable behaviour was on trial for its life.
As a result of Owens
, s 1 of MCA 1973 has been subject to unprecedented scrutiny. It is worth reminding ourselves what the Act says about the basis for divorce in England and Wales, and how it has been interpreted by the courts.
Section 1(1) MCA 1973 states that there is only one ground for divorce in England and Wales: ‘That the marriage has broken down irretrievably.’
Section 1(2) states that ‘the court shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts’.
The statute then sets out five ‘facts’. If the petitioner can satisfy one of them, the court will hold that the marriage has indeed broken down irretrievably and the petitioner can apply for a conditional order or decree nisi, and (after a six-week cooling off period) for decree absolute, the final decree of divorce.
The five facts are:
- that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
- that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
- that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
- that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition… and the respondent consents to a decree being granted; and
- that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
Facts (a) to (c) are ‘fault based’, whereas facts (d) and (e) are not. One effect of the way in which the five facts are drafted is that large numbers of people, who have concluded that their marriage has broken down irretrievably, have little option but to petition based on one of the ‘fault based’ facts. This would be the case, for instance, for a couple who have not been separated for at least two years, or for a petitioner who has been separated for three or four years, but whose spouse will not consent to a divorce.