The Appeal[2] decision in Owens v Owens [2017][3]

The
current law in England and Wales allows one
ground for divorce, which was introduced through the Matrimonial Causes Act
1973 (MCA). The petitioner must show beyond doubt, that the marriage has
irrevocably broken down based on one of the five facts listed in Section 1(2)1.
This section states that the marriage may be terminated on the grounds of (1)
adultery, (2) unreasonable behaviour, (3) desertion for two years, (4) agreed
separation for a minimum of two years or (5) involuntary separation for five
years. In effect, the passing of this legislation provided women with
opportunity to depart from a marriage solely on the grounds of adultery, which
prior to MCA 1974, was not possible. Additionally, the MCA 1974 reduced the minimum
period of marriage before applying for a divorce from three years to one year.

Nevertheless,
these changes were made over 40 years ago and are no longer suitable to apply
in society today. The attitudes of society have changed, in particular, towards
the independence of women and the law has failed to keep up with these developments.
The recent Court of Appeal2
decision in Owens v Owens 20173
has prompted fierce debate on the necessity to reform the current law on
divorce. Namely to introduce a non-fault based method for which spouses can
rely, in order to obtain a decree absolute.

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Given
that the divorce law in England and Wales is ‘fault’ based, (in the absence of
a two/five-year separation) the system ultimately promotes a ‘blame-game’
whereby each spouse essentially hunts for culpable behaviour which may be
deemed unreasonable under Section
1(2)(b). As a result, this system not only designs a hostile environment for
the couples and children, but also reduces the chances of any future
reconciliation. Senior Family
Lawyers and Academics have petitioned numerous advantages of a non-fault based
system and rightly argue that, there exist no plausible arguments against
granting ‘no fault’ divorces. Additionally, I advocate that the dissolution of
marriage should be achieved in the same light as the marriage is formed. Although,
there are strong arguments in favour of a (compulsory) 12 month ‘cooling-off’
period, divorce by mutual consent (thus
has capacity to consent) should be permitted; whereby both spouses can
consensually and voluntarily separate to the exclusion of the others.

 

FAULT
BASED SYSTEM

The current law on divorce is criticised for sustaining an old-fashioned,
needlessly lengthy procedure which creates a confrontational forum for feuds
between families. Although the MCA 1973 aimed to reform divorce law, the lack
of change has resulted in individuals being at risk of becoming a prisoner, in
an empty-shell marriage, should their spouse refuse consent or defend the
petition (that the marriage has broken down irretrievably). Section 1 requires
that the petitioner must feel that the behaviour committed by their spouse was
so unreasonable that they cannot be expected to live with him/her. Petitioners
who are unable to rely on the grounds of desertion or separation, are forced to
rely on fault based on facts of ‘adultery’ under section 1(2)(a) or
‘unreasonable behaviour’ under section 1(2)(b). A ‘fault based’ system requires
blame which, shreds any last trace of love and respect that would have
otherwise remained in the family, often creating a hostile environment for
co-parents.

Worse still, the difficulty
of the system is contrary to public policy and the dominant moral code. The
Committee on Procedure in Matrimonial Causes 1947 placed a great prominence4 on
the preserving the marriage and encouraging reconciliation in cases where there
was even a slight chance of success. However, the nature of the external moral
code contained within the law has been associated with a hidden policy agenda
to recapture pre-war society. Hence, feminist writers have perceived the
incorporation of family law into a wider correctional or moral code in post-war
Britain.

The Government’s failure to
implement new law in accordance with modern times has caused harm and intrusion
in the lives of citizens such as in Owens
v Owens 2017. After 37 years of marriage, Mrs Owens petitioned for a
divorce relying on unreasonable behaviour. Mr Owens, unconventionally sought to
defend the divorce, denying all 27 allegations which his wife made against him.
It was determined by Judge Toulson that her complaints were “minor altercations of a kind to be expected in a marriage”5
thus she had been ‘more sensitive
than most wives’ when she claimed that the marriage had broken down6.
Upon appealing to the court of appeal, this decision was upheld, confirming
that Mrs Owens had failed to prove ‘unreasonable behaviour’ on Mr Owens part.
In effect, this decision is notable because it ultimately implies that unless
Mr Owens changes either his position, or that of the law, Mrs Owens has no
choice but to wait until 2020 before she can receive a divorce. Whereby her
only grounds for divorce, will be petitioned under section 1(2)(e). This, of
course, is pending, depending on what the Supreme Court will conclude.

Nevertheless,
it follows that when Mrs Owens lost her appeal, she lost the autonomy to find
happiness, which raises the question of whether the law should be in control of
our romantic happiness? Are the government exceeding or abusing their powers by
intervening in the lives of citizens, by confining them to a loveless marriage?
– At present, it stands that Mrs Owens is left to feel unhappy, isolated and lonely,
and entirely at the disposal of adversarial divorce laws that have quite
clearly failed to catch up with contemporary reality. The result of Owens v Owens as of now, suggests that
the only way to get a speedily divorce, is to prove fault. So, it should be of
no surprise when couples unfairly disparage each other, sometimes falsely, to
support the profoundly wrong conception that fault must be established between
one of them for the dissolution of their marriage.

On the other hand, the controversial
decision made in favour of Mr Owens reasserts the limits of judges when
applying legislation. Indeed, the Law Commission has acknowledged that there is
very little direction given to judges, even on matters concerning the division
of financial assets or property. This is perhaps why it is argued that judges
must not assume the role Parliament and ignore clear words of statue on the
basis that the consequences may result in injustice for one party. Thus, it is argued
that the judges are not in the position to make adverse changes to the law when
deciding the Mrs Owens (Supreme Court) appeal.

 

NO-FAULT
BASED SYSTEM

Despite
this, the introduction of a no-fault based system is crucial for the state to
keep in accordance with the attitudes of society today. Several academics
applaud the laws of divorce in Scotland and Canada, whereby although fault
grounds for divorce are accessible, spouses can petition for dissolution of
marriage without the requirement of proving fault on the part of the
respondent. From these jurisdictions, we can draw that the simplicity of the
system aims to allow capacitated individuals to make their own life decision
and reduce the negative impact on the children during the family feud. In today’s
reality, “no fault, uncontested divorce”7 is the least complicated and inexpensive
way for departing couples to obtain a Decree Absolute. Ultimately, no-fault
divorce in effect means that the conduct of the spouses, whether during the
marriage or after the breakdown, is irrelevant to the divorce procedure, thus,
has no effect on custody and financial division of property and assets. I am of
the view that when relationships end, often neither8
party is at fault. In spite of love, tolerance and history, it is not uncommon9
when a relationship ceases to work. Hence, this peaceful alternative, provides
couples with reassurance that if the relationship is unsuccessful, they will
not be involuntarily ‘locked in’
their marriage.

Moreover,
at present, women share the same rights as men; they are no longer treated as
property of their husband and subsequently have higher expectations with less
tolerance. Various other factors such as financial freedom, access to
education, advances in technology and progress toward gender equality has
reshaped society’s attitude towards the traditional lifelong commitment of
marriage. This change must be responded to accordingly by the Government. After
all, if both parties are of age and have the capacity to consent as autonomous
and rational beings, there is no plausible argument for why they should not
make their own decisions. Should the government fail to act soon in the nearby
future, this issue will be exacerbated, and the marriage rate will continue to
decline. Hence, the longer the Government take to reform, the more likely that
couples will be deterred from marriage and the numbers of cohabitants will
increase.

 

 

RADICAL REFORM | THE FAMILY LAW ACT 2018

The radical reform of
divorce was due to come into force under the Family Law Act 1996, but this was
never implemented. It was argued that the Family Law Bill had failed to satisfy
its original objectives and it was heavily criticised. The initial aim of the
reforms were mainly concentrated on saving marriages; offering referrals for
marriage counselling, and opportunities to consider reconciliation, would be
facilitated; thus adequate time would be given to confirm whether the marriage
had was genuinely irrevocable. On the contrary, the research revealed that very
few petitioners took part in marriage counselling and the few which did attend,
did not attend with the view to saving their marriage. The decision not to
implement the family law bill was greeted with fierce debate and the recent
decision in Owens v Owens has
increased the pressure on Parliament to reform. Indeed, even the senior
members of the judiciary and the President of the Family Law Division, have
publicly acknowledged the need for change. Sir James agreed with his comments
and petitioned that reform would add “a bit
of intellectual honesty to the situation”.

Therefore, the new content on
divorce law should have three main objectives; firstly, to introduce a no-fault
bill, which removes the requirement of blame; allowing married persons to separate
without bitterness. Secondly, to prioritise the needs of any children and provide
protection for vulnerable adults who may require support after the separation. Thirdly, only in cases where both adults are willing
to consider the possibility of reconciliation, the law should provide
marriage guidance or counselling support.

 

Therefore,
the new content should:

?   
Retain fault based grounds for divorce such as
adultery and unreasonable behaviour but also;

?   
Reduce the separation period with mutual
consent from two years to one year.

?   
Reduce the separation period without consent from five years to two
years.

?   
Remove ‘Desertion’
as grounds for divorce.

?   
Make available therapy, counselling and support
on the request of a decree nisi by a petitioner.

?   
Conclude all financial, property and childcare
matters in tribunals prior to the
grant of a decree absolute.

?   
Make pre-nuptial and postnuptial agreements
binding with a very limited list of exceptions.

 

RATIONALE
FOR NEW CONTENT

Lady Hale has repeatedly
called for divorce on the grounds of mutual separation. With attention to the
fact there is currently no logical reason, as to why two consenting and capacitated
adults, cannot legally come to the decision to separate. Judges have outlined
this proposal many times, suggesting that if the divorce is not contested by
the other party, a judge should not be required to hear the proceedings of the case. Thus, marriage should be handled
as an administrative matter by a registrar, who should be able to dissolve the
marriage, in the same way that it was formed.

The current law makes a
decree absolute excruciatingly difficult to obtain, which essentially forces
couples to stay married for several years against their will, which may bring
more misery upon the spouses and the children. Additionally, children will
often have mixed feeling about the separation of their parents, as well as
difficulty processing the new changes. It is for this reason that society
requires a friendlier system which will grant husbands and wives quick legal
separation to preserve vestiges of love.

 

CONCLUSION

To conclude, despite decades
of debate and attempts to revise divorce law in England and Wales, the law
remains same as it was in the 1970’s. The failure to reform, has led the
current law to be a ‘state of confusion’, thus is no longer suitable. The
current law appears to make matters worse for children and does very little to
save marriages. At the very least, Parliament should reconsider the system to
make it easier and less painful, for a family who has made the conscious
decision to depart ways; as opposed to pressuring couples to stay together for
the benefit of the state.

The upcoming judgement in
Owens v Owens will inform us of whether the proposals of ‘no fault’ divorce
will succeed and reveal The Supreme Court’s consideration on unreasonable
behaviour in section 1(2)(b) of the MCA 1973. The mere fact that the Supreme
Court has proceeded to grant permission to appeal on the grounds of considering
whether the law was ‘fit for purpose’,
suggests that the Supreme Court agree to some extent that successive
parliaments have dragged their heels on this issue for too long. Owens v Owens
must be the match that ignites a fundamental change in divorce law in England
and Wales.

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