Divorce and civil partnership dissolution reform: how lawful? Part 1
In two related posts, David Burrows considers the legality of the new divorce rules … Continue reading
Law and rules on dissolution of marriage and civil partnership
On 25 June 2020, the Divorce, Dissolution and Separation Act 2020 (DDSA 2020) received Royal Assent. It is designed to make divorce fault or blame free. A new set of rules, namely Family Procedure (Amendment) Rules 2022 (SI 2022/44), were made on 12 January 2022 and laid before Parliament five days later. The amendments rules are mostly a substitution of a new Family Procedure Rules 2010 (FPR 2010) Part 7 (divorce and civil partnership dissolution). We are told the rules and Act will be in force on 6 April 2022, but there is still no sign of a commencement order, with less than two months to go.
DDSA 2020 amends and substitutes a new Matrimonial Causes Act 1973 (MCA 1973) s 1 and, in parallel and to exactly the same effect, Civil Partnership Act 2004 (CPA 2004) ss 37A and 44. The sole ground for dissolution of a marriage or a civil partnership is that one party – or both parties jointly – file an application in the family court saying that they regard the marriage or partnership as having irretrievably broken down. Family law reformers do not like it said that this is divorce or dissolution on demand, but that is – for the most part – what it is. Save for what follows and the extent to which a person can assert a reconciliation – that is, challenge the other spouse’s or civil partner’s assertion of irretrievable breakdown – this simple reform is probably to the good. [From now on references will be only to MCA 1973 alongside the parallel provisions in CPA 2004 ss 37A and 44.]
The main difference between the new scheme and the old is that, once the new scheme is in force, there will be no need to prove one or more of the five (divorce) or four (civil partnership) facts to establish irretrievable breakdown. Blame as between parties (adultery or unreasonable behaviour) or statutory periods of living apart go. However, alongside this essential reform is the amended MCA 1973 s 1(3) and CPA 2004 s 44(4) which both state:
“The court dealing with an application under subsection (1) must—
(a) take the statement to be conclusive evidence that the marriage has broken down irretrievably…”
Irretrievable breakdown where one party, or the facts, disagree
As I read s 1(3)(a), what it says is that if one spouse or civil partner (A) says the marriage etc has irretrievably broken down then that must be accepted by the court as a fait accompli. B may not in law argue with the point. This raises head-on a rights issue: does B have the right to argue the point in a civil court; and if so is s 1(3) compatible with B’s human rights? This subject, the first of three, will be considered in a second post. Logically its resolution depends on an explanation of two further subjects. Is any right to challenge an assertion of irretrievable breakdown a “civil right” in the context of European Convention 1950 Art 6.1?
The rules takes s 1(3) two stages further. So, second subject: the new rules at FPR 2010 r 7.1(3)(b) defines exclusively what it says are “disputed cases” – that is, it attempts to tell family judges on what specific subjects under FPR 2010 Part 7 only can they hear family litigation. As relevant r 7.1(3)(b) says:
“(b) matrimonial or civil partnership proceedings (excluding nullity proceedings) in which—
(i) an answer has been filed disputing—
(aa) the validity or subsistence of the marriage or civil partnership; or
(ab) the jurisdiction of the court to entertain the proceedings,
and has not been struck out;…”
And the third subject (to be considered in this post): the amendments to MCA 1973 and CPA 2004 are striking in their lack of any real attempt to give time or encouragement to parties to become reconciled. Some say the 20-week period between application (for a divorce etc) does that; but that is merely a question of sitting back and waiting. The amended rules at r 7.19(5) include:
“(5) Where the notice is received more than 12 months after the making of the conditional order, it must include or be accompanied by an explanation in writing stating why the application has not been made earlier.
(6) Where paragraph (5) applies, the court may—
(a) require the applicant to verify the explanation with a statement of truth; and
(b) make such order on the application as it thinks fit…”
As will be shown the difference between the old rules and the new and case law interventions are remarkable. Do they imply an attempt by rule-maker’s to overlook the fact of reconciliation where it has happened; and to ignore its possible consequences in terms of s 1(3)(b)? This involves questioning whether rule-makers (Family Proceedings Rules Committee: FPRC) can lawfully restrict parties in the litigation they can pursue. Such restriction is surely only for Parliament and the judges, not rule-makers.
Rules and reconciliation or just continued cohabitation
How does r 7.19(5) work? Suppose there is a reason, provable by my wife, to believe that our marriage has not broken down (eg that we have lived together for a couple of years after conditional order). In any case, there has to be a 20 week period before I can apply for a conditional order (decree nisi, as was). Application for a conditional order can be made six weeks after that 20 week period and the conditional order can then be made final (equivalent to a decree absolute).
In my case before the conditional order is made final and our marriage irrevocably dissolved, my wife and I decide to live together again. We resume our marriage. We give the lie to my s 1(3)(a) assertion of irretrievable breakdown. Two years later I decide it has not worked. I want to apply finally to dissolve my marriage. I want to make my conditional order final and then our marriage will finally be at an end.
In the new FPR 2010 r 7.19(5) and (6) the new scheme reproduces the rule in the old rules that if a party delays in applying for a final order for more than a year after the conditional order then they must say why. Thus, notice given more than 12 months after the conditional order was made must be “accompanied by an explanation in writing” (do they anticipate email as well?) stating why application has not been made earlier.
The new rule is set out above. Comparison of the new rule with the old is striking. The former FPR 2010 r 7.32(3) said:
“(3) Where the notice is received more than 12 months after the making of the decree nisi or the conditional order, it must be accompanied by an explanation in writing stating –
(a) why the application has not been made earlier;
(b) whether the applicant and respondent have lived together since the decree nisi or the conditional order was made, and, if so, between what dates;…” (italics mine)
The feature which is striking in the new r 7.19(5) is that any reference to the parties living together has been left out in the new rules. But no indication is given by the rules as to what the court is looking out for if there has been a more than a twelve month delay in application. One obvious factor might be whether a couple have in fact resumed cohabitation; but how, in logic does this fit with an assertion of irretrievable breakdown for the period since the filing of the original application for divorce under s 1(3). And how, by any honest view of the position, can it be said that for the past two years my marriage has irretrievably broken down?
Cohabitation and common law
Is this a question of judicial discretion, or of law? Where a couple have lived together after decree nisi – now conditional order – where there has been cohabitation by the parties, was explained by Parker J in Kim v Morris  EWHC Fam 1103,  2 FLR 1197. The wife had petitioned for divorce in 2006 on the husband’s adultery. A decree nisi was pronounced but before decree absolute the couple resumed their married life. The parties separated again four years later. The wife moved to Hong Kong but wanted to complete the divorce process in England. She applied for rescission of her decree nisi and permission to file a second petition. The husband’s proceedings in Singapore were stayed pending determination of the wife’s application in England. The judge rescinded the decree nisi and dismissed the English petition. She left unresolved whether she did this as a matter of law or of discretion. Parliament has not resolved the position. As will be seen shortly, Payne J in 1977 was more assertive on the point.
A rule – or absence of a rule – cannot override the common law (see eg Dunhill v Burgin (Nos 1 and 2)  UKSC 18,  1 WLR 933 per Lady Hale). The question must be whether Kim v Morris survives into 2022 under the reforms in DDSA 2020? An answer to that question depends on how the courts regard a delay in application for a final order where there has been a relatively long a period of cohabitation in excess of six months. The law – for example in MCA 1973 s 1(3)(a) – says one thing. If fact belies that assertion, where does the law – or an individual judge – stand then?
Discretion, but how far?
Does the court have a discretion as to whether a final order is to be granted and as to whether a conditional order should be rescinded? What is the modern law? Neither statute nor the rules help to answer this question. In Kim v Morris Parker J held that, in effect, she was bound by earlier case law, that there was – as the law stood pre-DDSA 2020 – an absolute bar on making the decree absolute where there was cohabitation of more than six months, where a spouse knew of the basis for irretrievable breakdown (adultery in that case). MCA 1973 s 2 was still in force then. It allowed for periods of reconciliation up to six months to be ignored in assessment of irretrievable breakdown. Section 2 has been repealed by DDSA 2020. But the facts – as opposed to the law – remain.
The alternative for Parker J – before s 1(3)(b) – was that she said that she had a discretion as to whether to take account of the cohabitation in a consideration of whether to rescind the wife’s decree nisi. Where the parties have lived together for longer than six months during the twelve month period whilst they had not applied for the decree nisi, the pre-2020 Act law was that there would be likely to be a presumption that the marriage has not irretrievably broken down. Permission to apply for a decree absolute might be refused and the decree nisi rescinded. Parker J took the view that she had a duty to take account of the cohabitation:
“ I have to have regard to the reasons for the delay and whether the parties have lived with each other (which I accept means ‘as husband and wife’) since the decree nisi. Those are the only specific matters referred to. I accept that they are crucial and they are crucial because they undermine the basis for the grant of decree nisi.”
Order ‘as the court thinks fit’: cohabitation and irretrievable breakdown
DDSA 2020 amends MCA 1973 and CPA 2004 to say that the sole ground for divorce is that the applicant(s) say(s) that the marriage has irretrievably breakdown. A question then arises, as occurred in Biggs v Biggs and Wheatley  Fam 1 (where the Queen’s Proctor was represented by one Nicholas Wilson), as to what is the position if the parties have resumed cohabitation. Can it be said that their marriage or civil partnership has irretrievably broken down. The view of Payne J (at 11C-D), as the law stood prior to DDSA 2020, was as follows:
“At the date of the application for a decree absolute, it is impossible to say that there has been irretrievable breakdown of the marriage because in fact the marriage has been retrieved. The parties have become reconciled. One must at the date of decree absolute take into account all the facts which are known to the court at that time. The court must not turn a blind eye to the facts which are that, at the time of application for decree absolute, the marriage has not broken down but that the parties are living together and have become reconciled. The wife in this case ought not to be allowed, merely because she would like it, to have this marriage dissolved, so that she can continue to live as she is with the husband, but to hold over his head a decree absolute, treating the marriage as having broken down, when in fact it has not.”
Statutory provisions come up against the day-to-day reality of family life. For the court to grant a decree absolute or to give permission to apply for it, the court must consciously accept the illogic of the wife’s position: she was asserting that the marriage had irretrievable breakdown; but she wanted to continue to cohabit as man and wife with Mr Biggs. Payne J was not prepared to accept that illogic.
So what will the court be entitled to “think fit”? How will the court be expected to exercise its discretion? The first problem is that Parliament has said that a statement by a party that their marriage has irretrievably broken down is ‘conclusive evidence’ of that fact. In the Biggs and Kim v Morris cases this, in fact (as distinct from law), would not be the case. And the courts know this.
Scope for reconciliation?
For all the reformers’ enthusiasm and rush to simplify the law they have overlooked any encouragement to parties and for their children to consider reconciliation. The old MCA 1973 was designed to do that (see MCA 1973 s 2).
Any challenge to s 1(3)(b) – which as law is much more than a presumption: it is a gagging clause – is intended to be impossible. Is that really what our common law and does the European Convention 1950 so permit? And was it within the FPRC’s powers to make law which may have overridden the old principles – if that is what they have done. That leads on to the second part of this article: what are the rule maker’s powers and how far can they make law (as distinct from procedural rules)? In short, to what extent is Parliament entitled to stifle argument on a person’s civil rights (if argument on irretrievable breakdown is a right) and can rule-makers restrict a subject’s right to argue a family law issue before the family courts?