The end of a marriageis inevitably an emotional, complex experience that ultimately results in thedivision of families. Similarly, the law of divorce is also quite complex. Courtsface the strenuous task of not only dividing the financial provisions in casesof children and property allocations, but they have to initially approve thedivorce according to legislation.
Under section 1(1) of the Matrimonial CausesAct 1973, only one ground for divorce is established and that is to prove thata marriage has irretrievably broken down.1 Therecent Court of Appeal’s surprising decision in Owens v Owens (2017) hasprovoked considerable amounts of criticism on this particular aspect of the lawof divorce.2The Court ultimately refused the plaintiff from acquiring the divorce due to thecurrent legislation and this invited criticism on the largely fault-based standardsindicating that the English law on divorce is antiquated. This essay will aimto analyze the decision made in Owens vOwens and the substantial setback created for divorcing couples due to theoutdated divorce laws. Though, English law on divorce does currently operate basedon fault and non-fault based facts, the essay will suggest a further need forreform in that there should be a pure no-fault divorce factor to reduceconflicts among the parties involved. The ruling in Owensv Owens aroused scrutiny in regards to problems and inadequacies in the lawof fault-based divorce.
The petitioner, Mrs. Owens, filed for a divorce fromMr. Owens based on his unreasonable behaviour according to section 1(2)(b) ofMCA 1973.3The behaviour that she complained of included Mr.
Owen’s lack of affection andattention, prioritising his work over family life, frequent arguments betweenthe parties, and speaking about her in a disrespectful manner.4 Itis assumed that most allegations of this particular kind would go through thecourts undefended and thus, would require no proof of the alleged behaviour.However, in this case, Mr. Owens defended the divorce and stated that themarriage had not deteriorated despite the parties leading separate lives.
5 Inregards to section 1(2)(b) of the MCA 1973, it is required that the plaintiffshows proof that the other party has behaved in a manner where the appellantcannot reasonably be expected to live with the individual afterwards.6 Basedon this, the Court of Appeal decided that the divorce should not be granted toMrs. Owens because there is no proof of such behaviour on Mr. Owens’ behalf.7 Therefore,since one party does not agree to the divorce, it is only after 5 years ofseparation that Mrs. Owens will finally be eligible for a decree nisi ofdivorce even if her husband still objects to it.8Unfortunately, till then, due to the current law of divorce, Mrs. Owens willhave to remain married although she can be living in a different house separatefrom Mr.
Owens. Thus, it is considered to be unjust that Mrs. Owens is left ina disadvantageous situation and must remain in a loveless and unhappy marriage.9,10Clearly their relationship had broken down and Mrs. Owens was desperate tobring the marriage to an end and reach a financial settlement that would enableher to move on. As will be discussed, the judges of the Court of Appeal did notagree with the law for the reason the decision was unfair and made on outdatedlaws, but they were unable to divert from legislation. While it can besuggested that Mr. and Mrs.
Owens’ petition for divorce was on the fault-basedfacts of adultery or unreasonable behaviour, the legal basis to approve adivorce plea is provided in section 1(1) of the MCA 1973 in that the plaintiffmust prove that the marriage has irretrievably broken down.11 Furthermore,an individual who brings forth a divorce appeal must be able to prove that themarriage has deteriorated according to one of the five facts listed in section1(2) of the MCA 1973, which includes adultery, unreasonable behaviour,desertion for two years, or separation of either 2 years with consent or 5years without consent.12 Asaforementioned, though the judges were not fond of the outcome, the Court ofAppeal had applied the law correctly by stating that Mr. Owens’ behaviour wasnot such that Mrs.
Owens could not reasonably be expected to live with him. However,President Sir James Munby and Lady Justice Hallett did not agree with the approachof the law and evidently referred to it being outdated.13 Inhis judgement, Sir James Munby said that the laws and practices that the judgeshave to follow are typically based on hypocrisy and lack of intellectualhonesty.
14Unfortunately, the judges in this case had their hands tied by the law as theycould not look past the legislation despite the fact they were not content withthe consequence of applying the appropriate laws.15 Whilethe judges of the Court of Appeal were unable to overturn the decision made inthe case due to the current law, laws relating to divorce are considered to be outof date in that fault needs to be identified to the Court for approval ofdivorce. As a result, this causes unnecessary blame and litigation between theparties. Due to the need of proof of fault at the time of divorce, couples areultimately forced to embarrass each other, whether sincerely or not, to supportthe idea that one of them has to be at fault for their separation.16 Thisis archaic as it is cruel, generally causing two individuals to become hostileand bitter towards each other. The concept of proving fault comes from historiclegal practice where the Church of England saw divorce to be contrary to thepublic policy and one had to have a legitimate reason as to separation known asa matrimonial offence.17 Onthe contrary, nowadays in modern times, divorce is far less stigmatized andvery rarely contested.
18 Thus,it is to be considered that the introduction of true no-fault divorce intoEnglish divorce law would be highly encouraged. Based on the rulingfrom Owens v Owens and the indication that the current legislation ondivorce is outdated, the law should be amended to allow true no-fault divorce. Theno-fault facts found in the MCA 1973 were previous reforms made to the law ofdivorce.19 However,based on the decision in Owens v Owens, it is evident that such reformsare not enough and that there is a pressing need for further amendments on thelaw of divorce in England.
Couples should have the option to decidejointly that their marriage had broken down irretrievably, without either partybeing required to satisfy the courts of any other facts.20 Thismodification would allow parties to get a divorce without blame and without increasinganimosity between themselves. Clearly, once a party has decided on divorce andproceeds to the Court, the differences within the marriage are obviouslyirreconcilable. Either party should not be compelled to remain in an unhappyrelationship due to the current law and it is unjust one party cannot obtain adivorce if the other party objects to it.
Furthermore, with the introduction ofa true no-fault divorce, the individuals would not have to wait 2 or 5 years toobtain a decree nisi of divorce. At the moment, it is hugely unhelpfulthat there is still a factor in the law of divorce which requires parties toblame one another if they wish to obtain a divorce in the first two years ofseparation. As Richard Bacon suggests, this reform would be added to the currentlegislation and it would only apply when both parties have agreed and signedsuch a declaration.21 Evidently,a pure no-fault divorce would make the divorce process a predominately administrativeprocedure rather than largely court-based.22This would allow individuals to simply state that their marriage does notsatisfy their own standards as opposed to being forced to prove to their courtwith evidence that their marriage has broken down. However, the reform of introducinga true no-fault divorce will not completely eliminate the existing provisionsof the law. Those requirements which demand the allocation of fault and blame wouldstill be available to those who wish to avail themselves to them.23 Further to the potentialreform, according to the Law Commission, a marriage that has broken down isconsidered to be an empty shell and the content of good divorce law must aim tominimize hostility and humiliation amongst the parties involved.
24It should also allow for maximum fairness between the plaintiff and therespondent.25If one spouse wishes to separate from the other party, then there is littlevalue in forcing the couple to remain married. With a no-fault divorce, theseparation will happen immediately, assuming the parties have undergoneconsultation, inevitably resulting in less conflict between both parties.
Whereas,under the current law, finding fault prolongs the divorce process and increasesthe risk of hostility, especially in situations of financial difficulties.26 Realistically,it is simply unjust for anyone wanting a divorce to put their lives on hold for2 or 5 years due to the fact they are required to find fault in the other partyinvolved. Thus, according to Baroness Hale, a no-fault divorce should beimplemented in order to lighten the need for allegations of blame.27 Additionally, it isnotable to take into consideration whether the right to divorce is a humanright.
28 Generally,forcing an individual to remain married against their wishes would beconsidered an infringement on their right to marry or right to family life.29 Withthe introduction of a true no-fault divorce, parties will be able to settledisputes with less conflicts and move on with their lives. Furthermore, inorder for the general reform to allow a true no-fault divorce, it is suggestedthat the content of this particular divorce, especially for those who areparents, should not only revolve around their own standards of the divorcementioned above, but should prioritize the interests of children.
30 Inthe case of a fault-based divorce, it is highly likely that bitterness isincreased amongst the parents as they try to prove who is the better parent interms of child custody. It is to be noted that the introduction of a pureno-fault divorce takes into consideration doing the right thing for childrenand assuring that their best-interests are taken into regard when approving thedivorce.31Unfortunately, the current law on determining matrimonial fault is failing toachieve the objective put forth by the Law Commission.321 Matrimonial Causes Act 1973, s1(1)2 2017 EWCA Civ 182 (CA)3 ibid4 ibid5 ibid6 Ash v Ash 19721 All ER 582 140 (Bagnall J)7 Owens (n2).8 MatrimonialCauses Act 1973, s 1(2)(e)9 Jonathan Herring, Family Law (8th edn,Pearson Education Limited 2017) 152.10 Owens (n 2)83 (Sir James Munby P)11 Matrimonial Causes Act 1973 (n 1).12 MatrimonialCauses Act 1973, s1(2)13 Owens (n 2)38 (Sir James Munby P)14 Owens (n 2)94 (Sir James Munby P)15 Owens (n 2)99 (Hallett LJ)16 Syed Jaffer Hussain, Marriage Breakdownand Divorce Law Reform in Contemporary Society: A Comparative Study of USA, UK& India (Concept Publishing Company 1982)17 Jane Lewis and Patrick Wallis, ‘Fault,Breakdown, and the Church of England’s Involvement in the 1969 Divorce Reform'(2000) 11 Twentieth Century British History 30818 ‘Divorce court: Woman in battle toseparate from husband’ BBC News (United Kingdom, 15 February 2017)