Thecurrent law in England and Wales allows oneground for divorce, which was introduced through the Matrimonial Causes Act1973 (MCA). The petitioner must show beyond doubt, that the marriage hasirrevocably 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) agreedseparation for a minimum of two years or (5) involuntary separation for fiveyears. In effect, the passing of this legislation provided women withopportunity to depart from a marriage solely on the grounds of adultery, whichprior to MCA 1974, was not possible. Additionally, the MCA 1974 reduced the minimumperiod 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 applyin society today. The attitudes of society have changed, in particular, towardsthe independence of women and the law has failed to keep up with these developments.The recent Court of Appeal2decision in Owens v Owens 20173has prompted fierce debate on the necessity to reform the current law ondivorce. Namely to introduce a non-fault based method for which spouses canrely, in order to obtain a decree absolute.
Giventhat the divorce law in England and Wales is ‘fault’ based, (in the absence ofa two/five-year separation) the system ultimately promotes a ‘blame-game’whereby each spouse essentially hunts for culpable behaviour which may bedeemed unreasonable under Section1(2)(b). As a result, this system not only designs a hostile environment forthe couples and children, but also reduces the chances of any futurereconciliation. Senior FamilyLawyers and Academics have petitioned numerous advantages of a non-fault basedsystem and rightly argue that, there exist no plausible arguments againstgranting ‘no fault’ divorces. Additionally, I advocate that the dissolution ofmarriage 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 (thushas capacity to consent) should be permitted; whereby both spouses canconsensually and voluntarily separate to the exclusion of the others. FAULTBASED SYSTEMThe current law on divorce is criticised for sustaining an old-fashioned,needlessly lengthy procedure which creates a confrontational forum for feudsbetween families. Although the MCA 1973 aimed to reform divorce law, the lackof change has resulted in individuals being at risk of becoming a prisoner, inan empty-shell marriage, should their spouse refuse consent or defend thepetition (that the marriage has broken down irretrievably).
Section 1 requiresthat the petitioner must feel that the behaviour committed by their spouse wasso unreasonable that they cannot be expected to live with him/her. Petitionerswho are unable to rely on the grounds of desertion or separation, are forced torely on fault based on facts of ‘adultery’ under section 1(2)(a) or’unreasonable behaviour’ under section 1(2)(b). A ‘fault based’ system requiresblame which, shreds any last trace of love and respect that would haveotherwise remained in the family, often creating a hostile environment forco-parents. Worse still, the difficultyof the system is contrary to public policy and the dominant moral code. TheCommittee on Procedure in Matrimonial Causes 1947 placed a great prominence4 onthe preserving the marriage and encouraging reconciliation in cases where therewas even a slight chance of success. However, the nature of the external moralcode contained within the law has been associated with a hidden policy agendato recapture pre-war society. Hence, feminist writers have perceived theincorporation of family law into a wider correctional or moral code in post-warBritain.The Government’s failure toimplement new law in accordance with modern times has caused harm and intrusionin the lives of citizens such as in Owensv Owens 2017.
After 37 years of marriage, Mrs Owens petitioned for adivorce relying on unreasonable behaviour. Mr Owens, unconventionally sought todefend 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”5thus she had been ‘more sensitivethan most wives’ when she claimed that the marriage had broken down6.Upon appealing to the court of appeal, this decision was upheld, confirmingthat Mrs Owens had failed to prove ‘unreasonable behaviour’ on Mr Owens part.In effect, this decision is notable because it ultimately implies that unlessMr Owens changes either his position, or that of the law, Mrs Owens has nochoice but to wait until 2020 before she can receive a divorce. Whereby heronly grounds for divorce, will be petitioned under section 1(2)(e). This, ofcourse, 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 findhappiness, which raises the question of whether the law should be in control ofour romantic happiness? Are the government exceeding or abusing their powers byintervening 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 quiteclearly failed to catch up with contemporary reality.
The result of Owens v Owens as of now, suggests thatthe only way to get a speedily divorce, is to prove fault. So, it should be ofno surprise when couples unfairly disparage each other, sometimes falsely, tosupport the profoundly wrong conception that fault must be established betweenone of them for the dissolution of their marriage. On the other hand, the controversialdecision made in favour of Mr Owens reasserts the limits of judges whenapplying legislation. Indeed, the Law Commission has acknowledged that there isvery little direction given to judges, even on matters concerning the divisionof financial assets or property.
This is perhaps why it is argued that judgesmust not assume the role Parliament and ignore clear words of statue on thebasis that the consequences may result in injustice for one party. Thus, it is arguedthat the judges are not in the position to make adverse changes to the law whendeciding the Mrs Owens (Supreme Court) appeal. NO-FAULTBASED SYSTEM Despitethis, the introduction of a no-fault based system is crucial for the state tokeep in accordance with the attitudes of society today. Several academicsapplaud the laws of divorce in Scotland and Canada, whereby although faultgrounds for divorce are accessible, spouses can petition for dissolution ofmarriage without the requirement of proving fault on the part of therespondent. From these jurisdictions, we can draw that the simplicity of thesystem aims to allow capacitated individuals to make their own life decisionand reduce the negative impact on the children during the family feud. In today’sreality, “no fault, uncontested divorce”7 is the least complicated and inexpensiveway for departing couples to obtain a Decree Absolute. Ultimately, no-faultdivorce in effect means that the conduct of the spouses, whether during themarriage 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 ofthe view that when relationships end, often neither8party is at fault. In spite of love, tolerance and history, it is not uncommon9when a relationship ceases to work. Hence, this peaceful alternative, providescouples with reassurance that if the relationship is unsuccessful, they willnot be involuntarily ‘locked in’their marriage.Moreover,at present, women share the same rights as men; they are no longer treated asproperty of their husband and subsequently have higher expectations with lesstolerance. Various other factors such as financial freedom, access toeducation, advances in technology and progress toward gender equality hasreshaped society’s attitude towards the traditional lifelong commitment ofmarriage. This change must be responded to accordingly by the Government.
Afterall, if both parties are of age and have the capacity to consent as autonomousand rational beings, there is no plausible argument for why they should notmake their own decisions. Should the government fail to act soon in the nearbyfuture, this issue will be exacerbated, and the marriage rate will continue todecline. Hence, the longer the Government take to reform, the more likely thatcouples will be deterred from marriage and the numbers of cohabitants willincrease. RADICAL REFORM | THE FAMILY LAW ACT 2018The radical reform ofdivorce was due to come into force under the Family Law Act 1996, but this wasnever implemented. It was argued that the Family Law Bill had failed to satisfyits original objectives and it was heavily criticised.
The initial aim of thereforms were mainly concentrated on saving marriages; offering referrals formarriage counselling, and opportunities to consider reconciliation, would befacilitated; thus adequate time would be given to confirm whether the marriagehad was genuinely irrevocable. On the contrary, the research revealed that veryfew 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 toimplement the family law bill was greeted with fierce debate and the recentdecision in Owens v Owens hasincreased the pressure on Parliament to reform.
Indeed, even the seniormembers of the judiciary and the President of the Family Law Division, havepublicly acknowledged the need for change. Sir James agreed with his commentsand petitioned that reform would add “a bitof intellectual honesty to the situation”. Therefore, the new content ondivorce law should have three main objectives; firstly, to introduce a no-faultbill, which removes the requirement of blame; allowing married persons to separatewithout bitterness. Secondly, to prioritise the needs of any children and provideprotection for vulnerable adults who may require support after the separation. Thirdly, only in cases where both adults are willingto consider the possibility of reconciliation, the law should providemarriage guidance or counselling support. Therefore,the new content should:? Retain fault based grounds for divorce such asadultery and unreasonable behaviour but also;? Reduce the separation period with mutualconsent from two years to one year.? Reduce the separation period without consent from five years to twoyears.? Remove ‘Desertion’as grounds for divorce.
? Make available therapy, counselling and supporton the request of a decree nisi by a petitioner.? Conclude all financial, property and childcarematters in tribunals prior to thegrant of a decree absolute.? Make pre-nuptial and postnuptial agreementsbinding with a very limited list of exceptions. RATIONALEFOR NEW CONTENTLady Hale has repeatedlycalled for divorce on the grounds of mutual separation. With attention to thefact there is currently no logical reason, as to why two consenting and capacitatedadults, cannot legally come to the decision to separate. Judges have outlinedthis proposal many times, suggesting that if the divorce is not contested bythe other party, a judge should not be required to hear the proceedings of the case. Thus, marriage should be handledas an administrative matter by a registrar, who should be able to dissolve themarriage, in the same way that it was formed.
The current law makes adecree absolute excruciatingly difficult to obtain, which essentially forcescouples to stay married for several years against their will, which may bringmore misery upon the spouses and the children. Additionally, children willoften have mixed feeling about the separation of their parents, as well asdifficulty processing the new changes. It is for this reason that societyrequires a friendlier system which will grant husbands and wives quick legalseparation to preserve vestiges of love. CONCLUSIONTo conclude, despite decadesof debate and attempts to revise divorce law in England and Wales, the lawremains same as it was in the 1970’s.
The failure to reform, has led thecurrent law to be a ‘state of confusion’, thus is no longer suitable. Thecurrent law appears to make matters worse for children and does very little tosave marriages. At the very least, Parliament should reconsider the system tomake it easier and less painful, for a family who has made the consciousdecision to depart ways; as opposed to pressuring couples to stay together forthe benefit of the state.The upcoming judgement inOwens v Owens will inform us of whether the proposals of ‘no fault’ divorcewill succeed and reveal The Supreme Court’s consideration on unreasonablebehaviour in section 1(2)(b) of the MCA 1973. The mere fact that the SupremeCourt has proceeded to grant permission to appeal on the grounds of consideringwhether the law was ‘fit for purpose’,suggests that the Supreme Court agree to some extent that successiveparliaments have dragged their heels on this issue for too long. Owens v Owensmust be the match that ignites a fundamental change in divorce law in Englandand Wales.