No Fault Divorce

In the much-discussed case of Owens v Owens [2018] UKSC 41; [2018] AC 899 the Supreme Court dismissed the final appeal of a wife who had been unable to obtain a divorce because, under section 1(2)(b) of the Matrimonial Causes Act 1973, she could not establish that her husband’s behaviour had been such that it would be unreasonable to expect her to continue in the marriage.

The 1973 Act (re-enacting provisions originally in the Divorce Reform Act 1969) enables a person to seek divorce “on the ground that the marriage has broken down irretrievably” – a state of affairs that can be demonstrated only if one of five “facts” have been proved. One of them is what is commonly – but mistakenly – described as “unreasonable behaviour”. But that is to misunderstand the section. It is not the respondent’s behaviour as such that needs to be unreasonable. It’s the idea that the petitioner should have to go on living with the respondent them that has to be unreasonable.

This was what Mrs Owens failed to prove to the judge’s satisfaction. The respondent Mr Owens very stubbornly refused to consent to the divorce, so she was, as Sir James Munby, President of the Family Division put it in the Court of Appeal [2017] EWCA Civ 182; [2017] 4 WLR 74, “trapped in [a] loveless marriage”. There was nothing the appellate courts could do to change the law. It was, said the Supreme Court, a matter for Parliament to amend the statute.

The need for legislation was recognised two decades ago. As a recent House of Commons Briefing Paper (Number 01409) on No Fault Divorce notes, “Part 2 of the Family Law Act 1996 would have introduced ‘no-fault divorce’ and required the parties to a divorce to attend ‘information meetings’ with a view to encouraging reconciliation where possible.” But the mediation pilot scheme proved “unworkable” and the relevant provisions were eventually repealed.

There have been various other suggested amendments to the 1973 Act, but following the Ministry of Justice’s consultation Reform of the legal requirements for divorce, (which closed in December 2018) the one now most likely to succeed is the private member’s bill put forward by one of Sir James Munby’s predecessors as President of the Family Division, Baroness Butler Sloss.

The key element of her proposal is the removal of the need to establish a factual basis for ‘irretrievable breakdown’ of a marriage or civil partnership. Instead, the Divorce (etc.) Law Review Bill proposes, first, that there be a review of the law on divorce as it currently stands, conducted by the Lord Chancellor, with a view to replacing it with a new “scheme for divorce and judicial separation, and the equivalent for civil partnerships, based on a system of application and confirmation”. No further evidence or reason would be required.

This is something Resolution (a group of family lawyers) has been calling for ever since it was formed. The Bill is the result of work by legal and relationship experts, politicians and family lawyers, following a research report Finding Fault by Professor Liz Trinder from the University of Exeter Law School, published by the Nuffield Foundation. This found that many parties were lying about each other’s conduct (consensually or otherwise) in order to expedite the divorce process, resulting in unnecessary stress, aggravation and delay.

Supporters of the Bill have said it will “end the blame game” and usher in genuine “no fault divorce”. But opponents claim it offers “divorce on demand” and argue that it will undermine the seriousness of marriage as an institution. However, as with the rest of the new legislation under scrutiny, the biggest hurdle is likely to be finding enough parliamentary time in the midst of what has been termed the “legislageddon” of Brexit.

Ending the “meal ticket for life”

In Mills v Mills [2018] UKSC 38; [2018] 1 WLR 3945 the Supreme Court grappled with another issue which has prompted calls for law reform, namely the scope for one or other of the parties to continue to receive, or to be able to come back for more, financial relief post-divorce. Although the case did not actually involve that old chestnut, the so-called “meal ticket for life” maintenance order, the decision prompted commentary on the subject, notably Meal ticket for life? by David Burrows in New Law Journal, 168 NLJ 7807, 7 September 2018. (Burrows draws attention also to the fact that the husband’s cross-appeal on his capitalisation of wife’s maintenance point – which comes to the same thing as the “clean break” – was denied permission to appeal in the Court of Appeal’s economical judgment. The issue was of far more importance, potentially; but it could not re-emerge to be argued in the Supreme Court.)

In a helpful post for the Transparency Project (Hit on the head by an old chestnut), Polly Morgan explained that the real issue in this 15-year-old divorce case was

“whether the spousal maintenance should include an amount for Mrs Mills’ rent when the original divorce settlement had given her a lump sum to buy a house without needing a mortgage. … It was about whether this was ‘double recovery’: being given money for a house” – which she’d lost through poor investment choices – “and later getting money that covered rent.”

That sounds more like a “second bite at the cherry” than the aforementioned old chestnut – which was given pretty short shrift by Lord Wilson, at para 25 of the Supreme Court’s judgment:

“Although the open-ended basis does not specify a fixed term for the life of the order, the circumstances which it identifies as bringing it to an end, in particular the potential for a further order ending it at any time, show how misleading (indeed, as the husband himself says, how unattractive) it is for some non-lawyers to describe such an order as a meal-ticket for life.”

Leaving aside any contemplation of the absurdity of some legal idioms, the case is one of a number which have prompted calls for a re-examination of the financial provision regime, with a view to imposing some sort of fixed limit on the scope to return to the court for further order.
The case was also cited by Baroness Deech who has been arguing for some time in favour of such time limits and has launched her own private member’s bill in the House of Lords. Her Divorce (Financial Provision) Bill has already had a debate on its second reading on 11 May 2018.

One purpose of her Bill is to provide legislative backing for the binding effect of “pre-nups” – pre-nuptial contracts providing for the distribution of marital property in the event of a divorce. Currently they are considered “persuasive” but ultimately it is a matter for the court’s discretion.

But another purpose of the Bill is to limit the financial provision to be made on divorce (under what is currently section 25(2) of the 1973 Act), providing for a default position that after payment of any debts the property should be split 50:50, and that financial support payments ordinarily should be limited to five years after the divorce. However, as the factors the court can take into account in making such an order are numerous and varied, it is hard to see how in practice the effect will be very different from the current approach, guided by case law.

Moreover, problems with dividing the spoils only tend to arise where there are spoils to divide, and the widely publicised “big money” cases with which Baroness Deech may be most concerned are hardly likely to affect the problems of those who cannot even get legal aid to defend their interests after their relationship breaks down. This is even more so where the relationship isn’t even formally registered as such.

What next in family legislation? Part 1: Divorce

No Fault Divorce

Ending the “meal ticket for life”

Further reading

Paul Magrath