Clamour for divorce reform should be seen alongside the less well-publicised unfairness caused by outdated marriage laws, says David Burrows.
The government’s proposals for divorce law reform were met with front-page headlines and unconcealed enthusiasm from a variety of family law reformers; and with justification. The need still to blame your spouse if you want a relatively prompt divorce is surely not necessary. Yet the reform proposals overlook the extent to which society has changed in the 40 years since the statute the government plans to adjust.
If the law on relationship breakdown is to be fair and non-discriminatory, a much wider series of reforms will be necessary; eventually:
The result is that there are a variety of relationships - heterosexual and same-sex - which cannot be affected by divorce, for the simple reason that to be divorced you must be married. And it is only if you are divorced that you can obtain the benefits of financial support, such as periodical payments (maintenance), property adjustment and lump sum orders, and pension adjustment from your former spouse (under MCA 1973 Pt 2).
Those who are not married cannot - as the law now stands - be brought within the much more important fold of financial assistance from family courts when the unmarried relationship breaks down. The parent caring for the children must be left to the rigours of the child support system and - probably - only to such capital provision as trust law allows.
The government’s proposals for divorce reform are set out in Reducing family conflict: Government response to the consultation on reform of the legal requirements for divorce, Ministry of Justice, April 2019 (page references below are to that response). The sole ground for divorce is proposed to be ‘irretrievable breakdown’, as MCA 1973 s 1(1). There will no longer be any necessity to show one or more of the five facts (adultery, behaviour, desertion and living apart for two (with consent) or five years) which now have to be shown to establish the ground.
That disposes of part of Pt 1 of MCA 1973. Irretrievable breakdown will be proved either by a joint application (now ‘petition’) for divorce by both parties; or by one or other filing a sole application. In the case of the sole applicant the other cannot ‘contest’. If one party says the marriage is ended, that is that. Some people object to this being described in the press as ‘divorce on demand’; but, for good or ill, that is what it is. The ‘irretrievable breakdown’ term as the ‘ground’ is a fig leaf which covers the ability of only one spouse to say they have had enough. The court stands by. It cannot allow any dissent from the irretrievable breakdown proposition. Adjudicating on dissent by one party is normally what judges do; but not in this case.
No application can be filed until one year after a marriage (as at present). After application there is a statutory pause. 20 weeks from the application (maybe from service: that has to be clarified: p32) later a party can obtain a conditional order (now ‘decree nisi’). Six weeks after that a final order (‘decree absolute’) can be obtained: 26 weeks (20 weeks, plus six) from application to final dissolution.
The six months gives the applicant, or parties, time to reflect—it is said—before the divorce is finalised. It is difficult not to think that if, instead, the six months was the living apart period (even three months) so that the final, and dramatic assertion of ‘irretrievable breakdown’ could be delayed for that period, then perhaps more relationships might be recovered. ‘The two-stage process remains helpful in offering an additional check on the decision to divorce, both for couples to reconsider and for the court to refer suspected abuse of the process,’ says the government (pp31 and 33). ‘Irretrievable’ means the end. If that term could be avoided, and a way to live out the ‘check’ without its meaning hanging over parties, might not that be more human?
The Lord Chancellor thinks that divorce is a process still to be dealt with by the court; though, save where there are issues about the status of the marriage or the Queen’s Proctor is involved, there is in practice nothing for the judges to do. So what will be the court’s role in this? The Ministry of Justice says (p26) it is ‘clear that the decision to grant a divorce remains a legal decision for the court to make. A divorce is a fundamental change of legal status that will alter people’s rights and responsibilities. The court must be satisfied on a number of areas, including that it has the jurisdiction to grant a divorce, that there is a legal marriage for it to dissolve…. These are important legal safeguards.’
And that brings this article back to the three points mentioned at the beginning. Divorce may be simplified by all this; but a growing proportion of contested family breakdown cases are dealt with by family courts on grounds other than divorce. For example, where jurisdiction is in issue - is this a case where the English courts should be involved at all (and these are likely to be more extensive after EU withdrawal)? This must be adjudicated upon.
Or, indeed, is there a marriage at all? Examples include a growing body of jurisprudence, such as:
If the status of the marriage is objected to at the time of a proposed divorce, this can only be dealt with as a defence to the petition (under the present law: see eg Akhtar v Khan ). Alternatively it may be dealt with, where a couple wish to establish that they are married, by declaration of marital status (Family Law Act 1986 s 55; FPR 2010 Pt 8 Ch 5), which involves also service of proceedings on the Attorney-General (FPR 2010 r 8.18). As can be imagined, this provides scope for expensive litigation; and, almost by definition, it will be engaged in only by those who have not taken part in a conventional Christian, Jewish or registry office marriage: that is to say, by couples from racial minorities.
MCA 1973 ss 11–13 deals with nullity of marriage. This is an area only rarely of significance in practice. It is proposed by the government that nullity should be immune from change. However, it will be an area where contest is almost inevitable in an increasing number of cases. Nullity (MCA 1973 s 11(1)(a)(iii): disregard of marriage formalities leading to the marriage being ‘void’) was the basis of the judgment in Akhtar v Khan . Litigation on points such as that in Akhtar will increase as more marriages are contracted outside the terms of Marriage Act 1949 and which later come before the courts.
The point—which is largely beyond the scope of this article—is that whether or not a woman (and it will mostly be of pressing concern to women) is married, affects not only her status, but it affects also her right to benefits; it may affect pension rights and right to insurance; it may affect inheritance rights and immigration status. It may be important in a couple’s community. Yet the statute on which much of the modern law is based is 20 years older than that now being reformed - the Marriage Act 1949; and the 1949 Act was a consolidation of Acts going back to 1836. Clamour for divorce reform should be seen alongside the less well-publicised unfairness caused by outdated marriage laws.
The process for nullity will remain as now: ‘a decree of nullity differs radically from its ending through divorce. A petition for nullity may be made at any stage of the marriage, including in its first year, but only on eight very specific grounds,’ says the Ministry of Justice (p37).
In any rational system of law reform, the unfairness to cohabitants (some of whom will slip into this class, because of their ‘non-marriage’ under the previous two points above) and to their children would be reformed alongside divorce. The unfairness is caused by the limited scope of trust law and its scope for discretionary distribution of capital in distribution of family property. A limited reform on this is proposed by Lord Marks’s Cohabitation Rights Bill in the House of Lords, whose success is watched for.
The fact of the matter is that the Lord Chancellor - if he finds legislative time to reform anything - has chosen the easy option in relation to family law reform. On the back of one successfully defended case, namely Owens v Owens  UKSC 41,  All ER (D) 144 (Jul) (which should surely not have got even to the Court of Appeal: as Lord Wilson explained at -), divorce law reform has shot up the reform agenda (bad cases, it is said, make bad law: that remains to be seen in any reforms which come from the government’s proposals).
The much more needy - in terms of law reform - cohabitants and non-Christian etc ‘married’ couples (it is surely an affront to include those inverted commas) must still wait to secure more extensive rights: namely, the updating of the Marriage Act 1949 and the clarification of law to give proper discretion-based law reform for couples and cohabitants and their children.
Until then, a modest welcome awaits a modern divorce reform law.