What does it take to get a divorce?

25 July 2018

by Rebecca Manley and Hazel Bacon

Rebecca Manley and Hazel Bacon discuss the significance of a decision of the Supreme Court concerning permissible grounds for divorce.

It’s very rare for a divorce to get as far as the Supreme Court and the decision in the case of Owens v Owens has been long awaited.

It was delivered yesterday (25 July) and you can see the summary here.

So, first, a quick summary. The basis for a divorce is that the marriage has broken down irretrievably. This can be demonstrated on any one of the following grounds:

  • Adultery
  • Unreasonable behaviour
  • Desertion (one party has left without agreement or good reason to end the relationship for more than two years in the last two and a half years)
  • Separation for two years (with the written consent of the other party)
  • Separation for five years (whether or not the other party agrees)

Unreasonable behaviour is the most common ground for divorce (45%). But what amounts to “unreasonable behaviour”? That is the issue that was considered in this case. Mrs Owens sought to rely on unreasonable behaviour. At the initial hearing the judge considered 27 examples provided by Mrs Owens which she said demonstrated that her husband was moody, argumentative and disparaging of her in front of others. However, the judge took the view the examples were “flimsy and exaggerated” and were isolated incidents. It was accepted that the marriage had broken down, but the examples were insufficient to demonstrate (as required) that Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him.

Mrs Owens’ appeal to the Court of Appeal was dismissed and now the Supreme Court has followed the lower courts.

That said, the judgment was delivered with a great deal of reluctance. Lord Wilson, delivering the lead judgment noted that the President of the Family Court has said that “the family court takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being”. He said that the majority of the Supreme Court had “uneasy feelings” about the basis for refusing the divorce. The estimable Lady Hale, President of the Supreme Court, went further and said that she thought that a proper disposal of the matter would have been to allow the appeal and return the matter to the first instance court to be considered again. However, on technical grounds, this option was not available to her because it had not been requested by Mrs Owens in her grounds for appeal.

Why do we not allow “no fault” divorce?

The Supreme Court judges who considered this case cannot be faulted for their analysis based on the law as it stands. The Times has been running a campaign for some time demanding a change in the law to permit no fault divorces on the basis the law has not moved with developments in cultural and societal attitudes towards relationships and that it creates unnecessary conflict which can harm relations with children of the marriage. The problem faced by the courts is that they are bound to apply the law as legislated in Parliament and, as it stands, the legislation requires that one of the grounds set out above (in the Matrimonial Causes Act 1973) must be established.

It’s a little-known fact that Parliament legislated to permit no fault divorces in Part 2 of the Family Law Act 1996 but, in the face of concerted opposition, it was never enacted. In 2010 a backbencher (Richard Bacon) introduced a 10-minute rule Bill which again aimed to allow no fault divorces, but it did not proceed.

Retiring President of the Family Court, Sir James Munby, succinctly summed up the problem with the law as it stands in a speech in 2014:

“The reality is we have and have had in this country for the best part of 30 years now divorce by consent. I think the fact is that under the law at present, although the only ground for divorce technically is irretrievable breakdown of the marriage, you can only establish that ground if you can establish adultery, unreasonable behaviour, and separation for two years with the consent of the Respondent or five years’ separation without the consent of the Respondent. Well, it’s not very difficult, bearing in mind the current concept of unreasonable behaviour, to come up with some petition containing what in a more robust era would have been called anaemic allegations of misconduct. The reality is that many divorces go through by consent in the sense that the parties have actually agreed the grounds of alleged unreasonable behaviour before the petition is issued. If they don’t want to do that and there’s been two years’ separation, then it goes through by consent, so the reality is we have divorce by consent.

“Defended divorces, contested divorces are almost invisible. They hardly ever happen nowadays so, in that sense, … all one’s doing is actually bringing a bit of intellectual honesty to the situation and getting rid of an unnecessary process which simply makes life more complicated because the district judge under the present system has to go through the ritual of considering whether the anaemic allegations contained in the petition drafted by agreement do or do not amount to unreasonable behaviour. Most of the time the district judge says, “Yes.” Occasionally the district judge says, “No,” throws the petition back and the petitioner then goes to the other party and they agree to put in slightly more robust allegations. Of course, that is not a sensible process.”

Family law practitioners and district judges, while they would never condone it, of course(!), know that parties agree to make up or embellish examples of unreasonable behaviour in order to “get over the line”. In no sense can that be an acceptable state of affairs. The law is being manipulated and that needs to be addressed.

Following the judgment, it seems that the Government agrees. The Ministry of Justice has issued a press release stating that:

“The current system of divorce creates unnecessary antagonism in an already difficult situation.

“We are already looking closely at possible reforms to the system.”

Rebecca Manley comments:

“So there we have it. The highest court in the land quashing the hopes of Tini Owens, and campaigners alike.

“But of course it was not a great surprise, it is not the job of the Supreme Court to change the law after all. They must apply the law as it stands, with the interpretations afforded by the Literal, Golden and Mischief Rules of course. It is the job of Parliament to change the law. With the scathing obiter comments from Lady Hale, President of the Supreme Court, and commentators alike one truly does get the sense a change is coming. The press release issued by the Ministry of Justice immediately following the judgment certainly eased the minds of some.

“The question on all family lawyers’ lips in the meantime however is how will the lower courts (who are bound by the courts above them) apply Owens v Owens? How will this affect the 45% of Petitioners across the country? For instance, will we start to see more refusal to grant Decree Nisi? Or will the judgment simply be ignored and we carry on like before? We may have to wait some time to truly find this out but, in the meantime, the answer must surely be to present as detailed a petition as possible – and keep our fingers crossed any children or vulnerable adults aren’t caught in any crossfire.”

Hazel Bacon adds:

“Nigel Shepherd, past chair of Resolution (which is an organisation of family justice professionals in England and Wales who believe in a constructive and non-confrontational approach to family law matters) has been a long-time campaigner for no-fault divorce.

“It should not be for any husband or wife to “prove” blame as the law requires many to do – this is archaic, creates needless conflict, and has to change.

“Since 1996 over 1.7 million people have assigned blame in the divorce process. That’s a huge number of people making allegations against their ex – many of whom didn’t have to.

“A large number of those will have been parents, so one can only wonder what the long-term damage is to separating families across the country, needlessly caused by an outdated divorce process that is no longer fit for purpose.”

“The Government is being called upon to support legislation committed to review the current law.

“Until they do, judges will have to continue to apply the law as it stands.

“There has to be a better way.”

You can read the full judgment here


Follow @clbsolicitors on twitter.