Remember 1973? Watergate? The Three Day Week? Pink Floyd’s Dark Side of the Moon? Red Rum winning the first of his three Grand Nationals? Well, that was the year in which the Matrimonial Causes Act 1973 was passed, which established the legal framework governing divorce in the UK that still prevails today. The world of 1973 was very different of course, homosexuality had been decriminalised only five years previously, Mary Whitehouse’s National Viewers and Listeners Association was actively campaigning against ‘the Permissive Society’ and divorce for many was still a dirty word. In fact, the divorce rate then wasn’t much greater than it is now (on average 8.4 divorces per 1000 married couples that year compared to 8.9 today, but of course there were far fewer people cohabiting – and splitting up- than now). Nevertheless, the scheme of the 1973 Act reflected the prevailing attitude that divorce amounted to failure, for which one or other party could be blamed, by introducing a system of ‘Facts’ that had to be pleaded to establish a ground for dissolution of marriage. The only grounds which permitted a relatively speedy exit from an unhappy marriage were adultery and unreasonable behaviour; if parties didn’t want to apportion blame then they had to separate for at least 2 years before the court would entertain a petition for divorce, and then only if the respondent consented. Without consent a period of separation for at least five years had to be established.
In the absence of admitted adultery all of this has left 21st century divorce lawyers relying upon creative drafting of behaviour petitions to find a quick way out of a marriage that neither party wants to continue, fostering feelings of resentment and hostility from the very outset of the divorce process. Good practice dictates that a petition should be presented to the responding party before it is lodged at court, so that the facts relied upon can as far as possible can be agreed, or at least not actively contested when the papers are lodged at court, but still, the process is significantly more time consuming, costly, and adversarial than it needs to be.
The inadequacy of the scheme has been thrown into sharp relief recently by the case of Tini Owens, who claims to be trapped in a loveless marriage to a man who refuses her a divorce (Owens v Owens 2017 EWCA Civ 182). The judge at first instance refused to grant Mrs Owens a divorce on the ground of her husband’s unreasonable behaviour, and that judgment was affirmed by the Court of Appeal recently, who agreed that that Mr Owens’ behaviour was simply insufficiently unreasonable under the Act (to give a flavour of the proceedings, one of Mrs Owens’ complaints concerned cross words between the parties concerning the correct loading of cardboard into a skip). Plainly, the court strived to give poor Mrs Owens justice, but simply found that it could not twist the law sufficiently to accommodate the evidence that she relied upon, with the result that the parties remain married. The case is now before the Supreme Court, but given the seniority of the Court of Appeal (Sir James Munby, President of the Family Division delivered the judgment) it would be surprising if a different conclusion was reached.
Interestingly however, the government has begun to take notice, David Gauke, the Justice Secretary has now acknowledged that the case for reform is “strong”, commenting that he is increasingly persuaded “that what we have at the moment creates more antagonism than we really need”. The alternative is likely to be a process by which a party to marriage formally gives the other notice of intention to divorce, and that after the expiry of a cooling off period this would be enough to establish grounds for dissolution. It may not be quite divorce on demand, but it‘s certainly far removed from the current arrangements, and would represent the biggest shake up of English and Welsh divorce law in 45 years.
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