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Examining Divorce Law's ‘Intellectual Dishonesty’ in Owens v Owens

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About The Author

Keir Baker (Consulting Editor)

Keir is a Trainee Solicitor currently sitting in the Finance department at a major US law firm. A law graduate from Selwyn College, Cambridge University, his main areas of interest are Employment, Discrimination and Competition law. Outside the law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

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A divorce is like an amputation: you survive it, but there's less of you.

Margaret Atwood

Nothing is easy about getting a divorce. The end of a marriage can be an emotionally charged event that divides families. Similarly, divorce law is a complex creature. Judges face the arduous task of balancing the award of financial provisions for children and other property allocations. Generally, however, the legal provisions that allow couples to actually go about securing a divorce are relatively flexible, such that it is very rare that a spouse wanting a divorce will be denied.

But this rare event did occur in a case that was decided earlier this year by the Court of Appeal and, as announced this week, is set to be examined by the Supreme Court. The decision re-opened a long-standing debate about the rationale underpinning the current law’s reliance on predominantly fault-based criteria. This article examines the debate, questioning whether the arguments in favour of maintaining the status quo are sustainable in light of standard practice in this area.

The Law: An Overview

English law recognises only one ground for divorce. Section 1(1) of the Matrimonial Causes Act 1973 (MCA 1973) requires a marriage to be shown to have ‘broken down irretrievably’. This can be proved only by reference to one of the five ‘facts’ listed in Section 1(2)(a)-(e) of the MCA 1973:

  • Adultery
  • Behaviour
  • Desertion
  • Two Years’ Separation and Other Spouse’s Consent
  • Five Years’ Separation

The spouse that has alleged the fact is described as the ‘petitioner’ while the other spouse is termed the ‘respondent’.

When the respondent is served with notice of the petitioner’s filing for divorce, they can defend the case by rejecting the existence of the ‘fact’. Section 1(3) of the MCA 1973 requires to court ‘to inquire, so far as it reasonably can,’ as to the veracity of the ‘fact’ alleged. Where a court is not satisfied as to the existence of the pleaded ‘fact(s)’ or that the marriage has irretrievably broken down, no divorce can be ordered.

Divorces are rarely defended. Out of the 113,996 petitions for divorce served in 2016, only around 0.67% were properly defended. Typically, this allows the court – following the ‘undefended special procedure’ outlined in Section 7.20 of the Family Procedure Rules 2010 – to grant the divorce in a matter of moments. This has left, as Wilson J suggested in Bhaiji v Chauhun [2003] 2 FLR 485, the requirement within Section 1(3) of the MCA 1973 ‘emasculated almost to invisibility.

Owens v Owens

Owens v Owens [2017] was a rare case of a defended divorce. In 2015, the petitioner Tini Owens filed for divorce from her husband of 36 years, respondent Hugh Owens. Both parties accepted that they had separated three months earlier and that, two years before, Tini had had a six-month affair. It was also noted that Tini had in 2012 sent a draft petition for divorce to her solicitors, but had not followed through.

In filing her petition, Tini alleged the existence of the behaviour ‘fact’ under Section 1(2)(b) of the MCA 1973. In his response, Hugh declared an intention to defend the case. He was then required to show that the marriage had not irretrievably broken down via the denial of the ‘fact’. Examples of Hugh’s allegedly unreasonable conduct cited by Tini included:

  • Hugh prioritising of his work over home life and failing to make time for the family, often missing family holidays and family events.
  • Hugh not providing Tini with love, attention or affection and not supporting of her role as a homemaker and mother.
  • Hugh’s mood swings causing frequent arguments between the parties.
  • Hugh being unpleasant and disparaging about Tini both to her and to their family and friends and speaking to her and about her in a critical and undermining manner.

The ‘Behaviour’ Fact

Section 1(2)(b) of the MCA 1973 requires a petitioner citing the behaviour ‘fact’ to show that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. After considering a wide range of authorities, Munby P in Owens [2017] emphasised that the relevant test involved both an objective and subjective inquiry, such that the question asked is:

[W]hether a right-thinking person, looking at the particular husband and wife… would ask whether the one could reasonably be expected to live with the other taking into account all the circumstances of the case and the respective characters and personalities of the two parties concerned.

Munby P was also quick to note that regard could be had to the cumulative effect of all the respondent’s conduct:

[I]f the marriage is unhappy, a particular piece of ‘conduct’ may have more impact and be less ‘reasonable’ than exactly the same conduct if the marriage is happy… What may be regarded as trivial disagreements in a happy marriage could be salt in the wound in an unhappy marriage.

The Court of Appeal’s Judgment

The Court of Appeal in Owens [2017] held that the first instance judge had correctly applied the law by holding that Hugh’s behaviour was not such that Tini could not reasonably be expected to live with him. However, both Munby P and Arden LJ attacked the current law, with Munby P called it ‘badly out-of-date, indeed antediluvian’. Yet, with palpable regret, both also accepted that the law compelled the decision. In the words of Arden LJ:

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. [Thus], this court cannot overturn a decision of a trial judge who has applied the law correctly… simply on the basis we dislike the consequence of his decision… try as I might, I cannot find a legitimate basis for challenging the judge’s conclusions.

The Key Debate: The Merits of No-Fault Divorce

A pure system of no-fault divorce would effectively allow for divorce on demand. The petitioner could successfully file for divorce without needing to justify their claim that the marriage had irretrievably broken down. For Tini Owens, this would have allowed her to obtain the divorce she seeks.

English divorce law currently operates a hybrid approach when it comes to fault. The first three ‘facts’ listed in Section 1(2) of the MCA 1973 involve the petitioner claiming, by reference to the relevant ‘fact’, that it is the respondent who is responsible for the irretrievable breakdown of the marriage. Meanwhile, the final two ‘facts’ allow a divorce to be granted without blame being placed on either party so long as a necessary period of separation is made out and, for Section 1(2)(d) of the MCA 1973, the respondent’s consent is given.

In Favour of Fault-Based Divorce

The retention of fault-based grounds for divorce is still the subject of support. Some articulate justice-based reasoning for this position: they argue that attributing blame to one party and exonerating the other – the adjudication on right and wrong – is exactly what the legal system is for, and there is no reason for the law not to fulfil that role in relation to marriage. Indeed, it might be suggested that divorce law is used to enforce responsibility for wrongdoing, or that there is a psychological need to apportion blame for a marital breakdown; this may help cheated spouses get a sense of justice because they feel that their partner has been punished.

There is also an argument that the property allocation and financial payment awards following no-fault divorce allows a party who is actually at fault to benefit where the principle of ex turpi causa holds they should not. This argument is particularly strong where domestic violence has helped contribute to the end of the marriage.

Furthermore, it might be argued that marriage is something more than a purely private agreement and the prevention of divorce is a matter of legitimate public concern. Therefore, it is undesirable for the state to remove fault, particularly as it might undermine marital obligations and their moral basis. A no-fault approach also wrongly places focus on the individual fulfilments of marriage and ignores the underlying communitarianism and mutual commitment of marriage. By making divorce relatively easy, leaving marriage is no longer the major commitment it once was and the responsibilities and rights of the married and the unmarried increasingly similar. This, it is argued, undermines the idea of marriage as an institution for creating trust and security between individuals in the sphere of family life.

However, the most cited argument in favour of fault-based divorce grounds is rooted in the idea that, in order to buttress the institution of marriage, divorce should not be widely available: easy divorce is said to undermine marriage and hard divorce is said to support it. Fault-based divorce is therefore said to be a tool that can be used to deter bad behaviour in marriage: the knowledge that divorce may only occur if a party misbehaves encourages spouses to invest in the marriage for their mutual benefit, safe in the knowledge that their investments are protected for as long as the other party has no grounds for divorce.

In Favour of No-Fault Divorce

Whether the arguments in favour of the current system of fault-based divorce stand up is questionable. Even if fault is properly a matter for family law (and this is controversial), it is doubtful that the reason that spouses invest in marriage is because the law places barriers in the way of divorce: most couples enter marriage thinking it will last forever and very few know about family law. If anything, it is the social norms surrounding marriage that are more potent.

Furthermore, the idea that the law of divorce should be stringent to support marriage does not hold up: by making divorce harder, poor quality marriages are maintained which undermines marriage as an institution. It must also not be overlooked that divorce is never easy: never mind the complexity of navigating the rules regarding regulations of finances and children’s well-being, the emotional pain of divorce is often difficult to alleviate. As Otto Kahn-Freud explains:

It is a hopeless quest to promote the stability of marriage by making divorce difficult... the problem is far more complex and more profound than (that) crude question.

Other concerns can be raised about fault-based divorce. Arguably, the inclusion of fault promotes conflict and makes it more difficult to maintain good post-divorce relations; requiring the parties to make (unpleasant) allegations about each other to obtain a divorce does nothing to save marriages and adds distress and humiliation to the process.

And practical difficulties remain too. The ascribing of guilt and innocence in intimate relationships is often far from straightforward, and the legal system is ill-equipped to identify correctly the causes of a marriage’s demise. Furthermore, the one-sided nature of petitions presents a dishonest and distorted picture of the real reasons for a marriage breakdown which can leave the respondent feeling as if they have been viewed by the courts as being entirely to blame.

Analysing the Current Law

Notwithstanding the above criticisms, it might be argued that English law’s current hybrid approach to fault in divorce strikes the correct balance between competing policy goals by reaching a necessary compromise. While the fault-based grounds allow one party to secure a divorce immediately if and when justice requires it, the ‘qualifying periods’ and consent requirement for separation prevent the extent to which no-fault divorce can erode the stability of marriage as an institution.

However, even if the criticisms of the fault-based system outlined above are not compelling enough, the case for maintaining the status quo is fundamentally flawed due to one key factor: the possibility of so-called ‘quickie divorces’.

A ‘quickie divorces’ occurs when the parties easily fabricate a fault-based ‘fact’, such that most divorces – though ostensibly based on fault – are really divorces by consent since they are undefended. As Munby P explained in scintillating fashion in Owens [2017]:

In the vast majority of such cases the petition proceeds without interrogation… The obligation imposed on the court [in Section 1(3) of the MCA 1973] is qualified by the crucial words “so far as it reasonably can”… [T]he challenge for the divorce lawyer is therefore to draft an anodyne petition, carefully navigating the narrow waters between Scylla and Charybdis to minimise the risks… it may be rejected by the court.

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 MCA 1973 but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of Section 1(2)(b) of the MCA 1973.

Too often the modern ‘behaviour’ petition is little more than a charade.

English law’s current system must therefore be viewed as failing: not only does its preference for fault-based grounds reflect the pursuit of dubious goals that create issues of practical application, but its capacity for manipulation means it simply fails to achieve those goals in the first place. And, all the while, this creates the potential for injustice for petitioners like Tini Owens.

Time for Reform

With everything taken into account, it seems clear that the introduction of no-fault divorce into English law would welcome. Reform, however, is not simple: there are effectively two competing forms of no-fault divorce that could be implemented.

Divorce by Mutual Consent allows divorces to be granted on the joint request of both parties without requiring any evaluation of the status of their marriage. Divorce by Unilateral Demand, meanwhile, goes even further, allowing divorces to be granted without such an evaluation on the request of just one of the parties.

Divorce By Mutual Consent

Via Section 1(2)(d) of the MCA 1973, English law already expressly permits Divorce by Mutual Consent, but only where the parties have been separated for two years. It follows that reforming the law to allow for Divorce by Mutual Consent could be seen as the mere speeding up of the process.

In fact, as Munby P explained in Owens [2017], ‘quickie divorces’ have allowed parties to get divorced without having to wait that long; they are effectively divorces by mutual consent. Therefore, allowing for mutual consent as a ground for divorce could be viewed simply as a pragmatic change in the way divorce law functions rather than a fundamental change in policy.

However, Divorce by Mutual Consent cannot be viewed a panacea. For one thing, it does not resolve the injustice for petitioners like Tini: Hugh's current attitude towards the divorce suggests that he is unlikely to give the necessary consent. Tini would then have to wait a further three years to secure the divorce via Section 1(2)(e) of the MCA 1973.

Furthermore, it might not necessarily aid the speed with which the process of divorce could be undertaken: increased procedural safeguards would be needed to ensure that consent has been given in a free and informed way. Crucially too, Divorce by Mutual Consent overlooks the existence of situations in which one party should be free to instigate divorce without the other party’s consent, such as where the respondent is guilty of some grave fault like domestic violence.

Divorce on Unilateral Demand

The only reform that addresses the criticisms of Divorce by Mutual Consent, and that provides relief to petitioners like Tini is the purest form of no-fault divorce: Divorce on Unilateral Demand. It is submitted that this is the preferable model for reform.

Introducing this would entail accepting a new conception of marriage that sees the State is entirely removed from adjudication on how it ends, allowing it protect the unwilling party only via decisions relating to the arrangement for children and finances. For this reason, it is criticised by fault advocates for undermining each spouse’s ability to rely upon ‘the marriage contract’, thereby damaging the quality of their partnership.

But while Divorce on Unilateral Demand might appear radical, the difficulty of defending divorce petitions and the lack of serious scrutiny under the procedure for undefended divorces mean that many divorces are already effectively granted on this basis. Furthermore, it can be justified on the grounds that the consent of both parties ought to be necessary for a marriage to continue: it is fair to assume that those best placed to determine whether a marriage has irretrievably broken down are the parties themselves. Therefore, if one party wishes to divorce, this is surely the best evidence available that divorce is appropriate.

Conclusion

It awaits to be seen how the Owens' case will play out in the Supreme Court, which – fascinatingly – will soon consist of four Family law specialists as Dame Jill Black joins Baroness Hale and Lords Wilson and Hughes. No substantive change will be made to the law – reform in this area is a job for Parliament – but some strong criticism of the status quo is to be expected (both Lord Wilson and Baroness Hale have previously advocated the introduction of no-fault divorce) that might be trigger legislative change.

However, any major changes to the current law will face significant resistance. This is symptomatic of family law as a whole: the issues involved are invariably emotionally-charged such that they generate passionate arguments from a number of different perspectives.

But the way in which practitioners are able to manipulate the current law shows its failure to correspond with practical realities. As a result, the introduction of Divorce by Mutual Consent or Divorce on Unilateral Demand would be nothing more than minor changes to the status quo that also manage to overcome any last remnants of the practical and theoretical problems with the fault-based approach.

Ultimately, the case for reform that strengthens no-fault divorce is strong. Indeed, the principal argument against it – that it would undermine the ability of divorce law to protect the institution of marriage – simply cannot stand up on the grounds that the current system is also failing in that goal. After all, the current law is, as Munby P said in Owens [2017], based ‘on hypocrisy and lack of intellectual honesty’.

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Tagged: Family Law, Supreme Court

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