The concept of “no fault divorce” has gained traction in recent years, but the recent case of Owens v Owens and the image it conjures up of a wife trapped in a loveless marriage has concentrated people’s minds on the issue. As the case heads towards a further appeal hearing in the Supreme Court, David Burrows comments on the prospects for reforming a law to meet its legislators’ true intentions nearly half a century ago.

What right does “cannot reasonably be expected to live with” protect?

Mrs Owens has been given permission to appeal to the Supreme Court. She is challenging the decision of the Court of Appeal (Owens v Owens [2017] EWCA Civ 182; [2017] 4 WLR 74) to find that, though her marriage had unquestionably broken down, she had failed to prove that her husband had behaved in a way which showed that she could not – in law – reasonably be expected to live with him. Matrimonial Causes Act 1973 (MCA 1973) s 1 (originally Divorce Reform Act 1969 ss 1 and 2) provides one ground for divorce: either party to a marriage (A) can petition for divorce  “on the ground that the marriage has broken down irretrievably”. A court can only find irretrievable breakdown if one of five “facts” are proved including, under s 1(2)(b): “that the [other party (B)] has behaved in such a way that [A] cannot reasonably be expected to live with [B]”. Section 1 does not say “unreasonable behaviour” as many people – lay and lawyer alike – describe s 1(2)(b) in short-hand. That implies an objective test. Section 1(2)(b) says that someone has “behaved” in such a way that the other cannot “reasonably be expected” to live with them. It is a subjective test, which applies in the case of each individual marriage. Failure to see the objective-subjective distinction may be at the root of the Court of Appeal decision; and it may be critical to its construction and to what Parliament intended when the 1969 Act was passed (as Padfield (below) requires).

Mrs Owens in the Court of Appeal

The Court of Appeal decision can be characterised by Hallett LJ who said, at [102]: “On any view, the marriage is over”. But she, with Macur LJ, agreed with Sir James Munby P that Mrs Owens’s appeal should be dismissed. Her marriage remained undissolved. In the course of a 98-paragraph judgment Sir James said:

 [84] … unless [Mrs Owens] can bring herself within the ‘no fault’ provisions of s 1(2)(d) and (e) [living apart for two years (with consent) or five years] she must remain trapped in her loveless marriage…. Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.”

This article looks at MCA 1973 s 1 and Owens

  1. From the point of view of the question: what was the political intent behind the divorce provisions of Divorce Reform Act 1969 s 1 and 2; and
  2. Some thoughts on reform if s 1 truly requires proof of ‘fault’ for an immediate divorce.

Dissolution of marriage: what did parliament intend?

In ‘Owens: a dead marriage but no divorce’ [2017] New Law Journal (£) 31 March 2017  I suggested:

When this law was passed (originally in Divorce Reform Act 1969), can it have been Parliament’s intention that a dead marriage should be preserved? I doubt it. The court is entitled to look not just at the words of a statute but at Parliamentary intent (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 1 All ER 694).”

The comment on Padfield needs to be drawn out a little (with help from ICLR’s ‘Subsequent Consideration’ section) and to see how the case has developed since 1968. Padfield concerns ministerial discretion whilst MCA 1973 raises the separate question of law as applied to facts. However, by use of “reasonably expected” of a couple, Parliament has introduced a subjective element, not only for the couple in question, but also to how an individual judge sees behaviour. This brings the judicial exercise close to a discretion. If this is so, Padfield policy questions may arise. Recent comments on Padfield have included R (GC) v Commissioner of Police of the Metropolis (Liberty and another intervening) [2011] UKSC 21; [2011] 1 WLR 1230 where Lord Kerr summarised the importance of Padfield – the ‘seminal authority’ – as:

 [83] … That a discretion conferred with the intention that it should be used to promote the policy and objects of the Act can only be validly exercised in a manner that will advance that policy and those objects. More pertinently, the discretion may not be exercised in a way that would frustrate the legislation’s objectives. Everything therefore depends on what one decides is the true intention or purpose of the legislation.”

And last year, Longmore LJ in the Court of Appeal of appeal in R (Rights of Women) v Lord Chancellor [2016] EWCA Civ 91; [2016] 1 WLR 2543 (unlawful legal aid provisions for victims of domestic abuse) said of the Lord Chancellor’s confusion of Wednesbury reasonableness and Padfield:

 [42] … [These two jurisdictions] are separate concepts. Any discretion conferred on a Minister ‘should be used to promote the policy and objects of the statute’, R (Electoral Commission) v Westminster Magistrates’ Court [2010] UKSC 40; [2011] 1 AC 496, para 15, per Lord Phillips…. Any inquiry as to frustration of purpose must consider whether there is a rational connection between the challenge requirement and the legislation’s purpose.”

Can this duty on ministers be related to judges in their consideration of MCA 1973 and of the question of whether someone can “reasonably be expected” to live with another person? If so, what is the “purpose” of the 1973 Act provision?

Padfield and Parliamentary intent: “policy and objects of the Act”

In Padfield Lord Denning MR (in a minority the Court of Appeal, but upheld 4:1 in the House of Lords) had explained the scheme under review by the courts as follows (at 1003):

We are here concerned with the marketing of milk. It is regulated by the Milk Marketing Scheme and administered by the Milk Marketing Board. The dairy farmers of England and Wales sell their milk to the Milk Marketing Board. The lorries of the board pick up the churns of milk at the farm gate and carry it to depots. The price is fixed by the board for milk delivered at the farm gate. In order to fix the price, England and Wales are divided into eleven regions. The price varies from region to region.”

The producers of the South-Eastern Region producers contended that the differential between it and the Far-Western Region should be altered in a way which would incidentally have affected other regions. Since the constitution of the board, which consisted largely of members elected by the individual regions, made it impossible for the South-Eastern producers to obtain a majority for their proposals, they asked the Minister of Agriculture, Fisheries and Food to appoint a committee of investigation and when he refused they applied for an order (‘mandamus’) to require the minister to do so. At 1030 Lord Reid said that Parliament must have intended the minister rationally to consider the request; and if it was to be refused to explain why. In so doing, the minister must consider the aims of the legislation in question:

Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.”

The House held that the minister had failed to consider the policy of the statutory provisions. That request must be referred back to him for further consideration.

Owens and the policy of Divorce Reform Act 1969

What can this have to do with Mrs Owens? Perhaps, that where a judge is considering how “reasonably” to interpret facts and to do so in the light of a statutory provision, a question for the Supreme Court may be to say that the judge should do so with the policy – not just the words – of the statute in mind. Not only words, but also intent, comes into the judgment. I have not gone back, at this stage, to the various literature around at the time of Divorce Reform Act 1969; but it is clear from the 1969 Act that Parliament intended to modernise the law. As Sir James Munby P said in Owens, they produced an “always speaking” (his term) statute:

 [37] I do not need and I do not propose to add to the jurisprudence. What the authorities show is that, in a case such as this, 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. The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent? […]   [39] … the law permits, indeed requires us, to look at matters from the perspective of 2017. Section 1 of the 1973 Act is an ‘always speaking’ statute: see R v Ireland [1998] AC 147, 158. Although one cannot construe a statute as meaning something ‘conceptually different’ from what Parliament must have intended (see Birmingham City Council v Oakley [2001] 1 AC 617, 631, per Lord Hoffmann), where, as here, the statute is ‘always speaking’ it is to be construed taking into account changes in our understanding of the natural world, technological changes, changes in social standards and, of particular importance here, changes in social attitudes.”

Sir James concludes this passage (at [41]) by asserting that s 1(2)(b) must be looked at from the point of view of “Boris bus” person: “not the man or woman on the Routemaster … when the 1969 Act received the Royal Assent, but the man or woman on the Boris Bus with their Oyster Card in 2017.”

Looked at from 2017: what did Parliament intend?

So, what would the 2017 traveller say? What might he or she think Parliament intended in 1969; and what does that mean now? I suspect they would agree with Hallett LJ (quoted by Sir James):

 [37] … This being the law, I respectfully agree with the point made by my Lady, Hallett LJ, during the course of argument before us, that if the marriage is unhappy a particular piece of ‘conduct’ may have more impact and be less ‘reasonable’ than exactly the same conduct if the marriage is happy. As my Lady put it, and I agree, what may be regarded as trivial disagreements in a happy marriage could be salt in the wound in an unhappy marriage.”

In 2017, whatever their mode of travel, surely most people would say that common sense dictates that if A says the marriage is dead then, whatever B may say (a statutory pause for reflection may be a good idea) then it is dead? This is what Parliament intended: s 1(2)(b) was a mopping up provision to enable anyone who said they had had enough – just as they would be entitled to do in a relationship where there was no marriage certificate – to dissolve the marriage. They can then sort out any money (MCA 1973 Pt 2) and to move on. England in 2017 is a secular society. The concept of “grinning and bearing it” passed with the mid-20th century. This requires only an intelligent reading of s 1; and, if need be, a careful review of what Parliament intended (perhaps by reference to Padfield). If that be correct, let us hope the Supreme Court agrees with the modern traveller: that Parliament intended that, of course, a couple – whether ‘reasonably or not’ – should have their marriage dissolved.

Towards a no fault divorce: consent or one year living apart

If the Supreme Court cannot find that in intent Parliament came as close as it could to a “no fault” divorce in 1969, then what of law reform? Resolution (a group of family lawyers) has, throughout its existence, called for “no fault divorce”; and in granting permission to appeal the Supreme Court had a submission from the group. In the welter of post-Brexit bills it is unlikely that Parliament will look at a niche subject like divorce reform; (and if I were Resolution and offered a legislative slot for family law, divorce would be nowhere near the top of my shopping-list). So where do we go after Owens? In extreme cases like Owens and if the Supreme Court upholds the Court of Appeal, then the law is unsatisfactory. A true no-fault system in 2017 (nearly 50 years after Divorce Reform Act 1969) must be up for serious review. Two immediate areas arise: the divorce itself; and how to separate relationship breakdown from financial provision? Resolution proposes

… a new divorce procedure to remove the apportionment of blame from the legal process. A divorce should be finalised where one or both of the parties to a marriage give notice of their decision, supported by information and with the opportunity to explore other avenues, that their marriage has broken down and one or both of them are still of that view after six months.

A draft amendment to Matrimonial Causes Act 1973 s 1

No draft bill is attached by Resolution. For MPs embroiled in Brexit bills the Resolution proposal may be too complex. Below is a thought for amendment of the present MCA 1973 s 1, which provides for grounds and proof required for a divorce under current legislation. The draft passages underlined replace (ie amend) the present provisions in the 1973 Act. The present ground (irretrievable breakdown) and the ‘facts’ on which it is proved, go. There are two grounds for divorce:

  • Either parties can jointly consent to a dissolution; or
  • They can ask for a divorce, without consent of the other, after a year of living apart.

For Mrs Owens, she would have the statutory means, if unable financially to live apart from Mr Owens, to seek financial provision to enable her to provide accommodation to live apart; and she would be able to apply to the court for financial provision pending any divorce (see clause 1(5)). (Currently parties have to wait till after divorce to sort out money.) Some remaining provisions of Matrimonial Causes Act 1973 Pts 1 and 2 will need slight amendment; and procedural rules would need review. The main grounds for divorce – consent or one year apart – are set out in clause 1.

Draft clause 1: DIVORCE REFORM BILL  

1 Divorce on breakdown of marriage

(1) An application for a divorce order may be presented [to the court] by one or both parties to the marriage on the ground that the marriage has broken down irretrievably.

(2) [The court] dealing with an application for divorce shall not hold the marriage to have broken down irretrievably unless one or both parties satisfies [the court] either (a) that the parties both consent to their marriage being dissolved; or (b) that the parties have lived apart from one another for a period or periods of one year prior to the presentation of the application 

(3) On an application for divorce it shall be the duty [of the court] to consider fully, so far as it reasonably can, the facts alleged by the applicant for a dissolution under paragraph (2)(b) above.

(4) A divorce order shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six weeks from its grant.

(5) In accordance with Part 2 of this Act (financial provision on divorce), the court shall have power to award to a party to the marriage financial provision pending the ending of the one year period referred to at paragraph (2)(b) and of any final financial provision order later made under this Act.

David Burrows, solicitor advocate, is a regular contributor to the ICLR blog. His latest book is Evidence in Family Proceedings (LexisNexis / Jordans Family Law Price: £70.00) which is reviewed here.