A terrible muddle: the issue of no-fault divorce
On 17th May this year, the Supreme Court will hear the case of Owens v Owens  EWCA Civ 182. Never before has it had to consider what is meant by S.1(2)(b) MCA “that the Respondent has behaved in such a way that the Petition cannot reasonably be expected to live with the Respondent“, or (for short), Unreasonable Behaviour.
The case concerned Tini and Hugh Owens (respectively 68 and 80 years old), who married in 1978 and have two adult children. Mrs Owens (W) left the marital home in February 2015 and issued a behaviour petition citing particulars of a standard “anodyne” nature with which all practitioners will be familiar, with mood swings and disparaging behaviour being at the heart of the allegations. However, Mr Owens (H) indicated an intention to defend, and filed an Answer denying irretrievable breakdown. W obtained leave to amend her Petition to give more detail of her allegations. She came up with 27 specific instances of the alleged behaviour. H responded to each one and the matter went to trial.
Section 2 MCA requires the Court not to hold the marriage to have broken down irretrievably unless one of the five facts has been established. In considering a behaviour petition, the Judge stated his task (later approved by the Court of Appeal) as:
“The Court has to evaluate what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband (iii) in the light of all the circumstances and (iv) having regard to the cumulative effect of all the Respondent’s conduct.” (My emphasis)
With both parties giving evidence, the allegations were looked at forensically. The Judge was scathing about them. He considered them at best flimsy and that “they are all, at most, minor altercations of a kind to be expected in a marriage. Some are not even that“. He concluded “I have not found this a difficult case to determine. I find no behaviour such that the wife cannot reasonably be expected to live with the husband. The fact that she does not live with the husband has other causes. The Petition will be dismissed.”
The Court of Appeal could find no fault with the Judge’s approach. The President concluded: “as I observed during the course of argument, Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, although some people may say it should be“.
Such is the state of the law, and it seems unlikely that the Supreme Court will find any basis for thinking otherwise. As Baroness Hale told Resolution in April: “It is not the job of the Courts to legislate – only Parliament can do that. Our job is to interpret law that Parliament has given us. This is definitely not a vehicle for introducing the sort of reforms proposed by the Law Commission, by Resolution, or by [other proponents of reform].”
It is rather chilling to read the dissection of Mrs Owens’ amended Petition in the Court of Appeal Judgment. Huge numbers of our petitions would have fared no better, and many worse. The reality is that all of us involved in divorce work have been colluding in a conspiracy to operate a law different from law of the land, because successive Governments have not found the time or political will to bring the law into line with life as actually lived, such as has been achieved in – for example – Australia since 1975, New Zealand since 1980, and (to an extent) Ireland since 1995 and Scotland since 2006.
The matrimonial world has form on this of course (see Prest v Petrodel amongst other examples of it following a law as it might wish it to be), and the conspiracy is pretty wide and deep. For every practitioner that has drafted a mild (and on the present jurisprudence probably insufficient) petition, there has been a District Judge ready to wave it through. Statements of good practice by Resolution and the Law Society, while always careful to say that legal requirements must be met, encourage allegations being kept to the bare minimum, and this is reflected in established precedent libraries offering examples of “the mild behaviour petition”.
There is good reason for this: the law as it stands discriminates against those who cannot afford to live apart for two or more years; the need to allege adultery or behaviour suggests that one party is more to blame for the breakdown of the marriage than the other, and provokes unnecessary hostility and bitterness; it crystallises division and militates against efforts to salvage the marriage. Far from supporting marriage, its effect is to undermine it; and as a result, makes matters worse for the children. All of the above will be made worse if behaviour petitions have to be drafted for real. Furthermore, how does a requirement for behaviour petitions, now to mean what they say, sit with the clear intention for the divorce process to become not only entirely administrative (i.e., not judicial), but, in due course, online. Who is going to be considering if our more rigorous petitions have reached the required threshold?
We now appear to be in the worst of all worlds: the Government has set its face against reform at this time, we have been rumbled in our efforts to operate a parallel system and the appeal in Owens is unlikely to succeed. Unless the Supreme Court can save us, we are in a terrible muddle. The awful thing is that I do not think it can.
Read the full article in Family Law here.
Henry Hood, Partner