The Legislation

In English and Welsh law, established in the Divorce Reform Act 1969 and repeated in the Matrimonial Proceedings Act 1973, there is only one ground for divorce:

The sole ground upon which a petition for divorce may be presented to the court by either party to a marriage shall be that the marriage has broken down irretrievably.

This means that a petitioner for divorce must satisfy the court both that the marriage has broken down and that it is irretrievable.

The petitioner must prove this using one of five “facts”.

Three of these are fault-based, that is, the petitioner must establish that the breakdown of the marriage was due to fault on the part of the respondent.  These are: desertion, adultery and what has come to be called “unreasonable behaviour”.  This shorthand has led to considerable confusion; the legislation contains neither word, what it actually says is that to prove irretrievable breakdown the petitioner must satisfy the court―

That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

Thus, it is not the respondent’s behaviour that must be shown to be unreasonable, but the expectation that the petitioner should continue to live with them.  The law does not even require the petitioner to show that it was the respondent’s behaviour which led to the marriage breakdown.  In Bannister v Bannister (1980) 10 Fam Law 240, Ormrod LJ observed,

The learned judge, I am afraid, fell into the linguistic trap which is waiting for all of us when we speak of ‘unreasonable behaviour’ in relation to section 1(2)(b) cases.  The basis of this subsection is not ‘unreasonable behaviour’ but behaving in such a way that the petitioner ‘cannot reasonably be expected to live with the respondent’, a significantly different concept.  It is difficult to find an alternative shorthand expression for this subsection, so we all talk, inaccurately, of ‘unreasonable behaviour’.

There are, however, contradictions in this formulation: a court will not grant a divorce where a marriage has clearly broken down irretrievably if the petitioner is unable to establish sufficient fault, and where the petitioner can establish fault, the court will grant a divorce even if the marriage can be salvaged.

The remaining two facts are not fault based: separation for two years if the parties consent and separation for five years if they do not.  Thus, there is already provision in the law for “no-fault divorce”.

Attempts at Reform

Prior to 1969, the grounds for divorce had been adultery, cruelty, desertion and incurable insanity.  Divorce was relatively uncommon, though increasing, with the result that numerous couples were living in adulterous relationships and raising illegitimate children.

Calls for reform of divorce law had escalated since the failure of the Matrimonial Causes Act 1937 to enable separated couples to divorce.  As the Denning Report noted in 1947, there was no provision in law for the divorce of consenting parties.  Denning observed,

Marriage is not a contract which the parties can mutually agree to rescind.  It confers a status in which others beside the parties are interested… Society itself, for the sake of the children, cannot allow the unity of family life to be broken by the consent of the parties.  Hence in this country the fundamental rule that divorce by mutual consent is not allowed.

In a Private Member’s Bill in 1951, Eirene White MP proposed “a new principle, in that it looks to the breakdown of the marriage as the ground for divorce”, rather than fault committed by the other party.  Divorce, based upon this principle of “irretrievable breakdown” would be granted if the parties had been separated for seven years.

The Bill went no further, but between 1951 and 1956 a Royal Commission considered marriage and divorce; there had been only two previous Royal Commissions on marriage, in 1909 and 1350.  Nine of the Commission’s eighteen members recommended divorce based on irretrievable breakdown; opposition was based on the objection that this would constitute divorce by consent, an intolerable concept.

In 1962, the Labour MP for Pontypool, Leo Abse, launched a Private Member’s Bill based on the principle that there was no point in recrimination in a marriage which had irretrievably broken down.

Abse, a flamboyant Welsh lawyer who introduced more private member’s bills than any other MP in the 20th century, was best known for pushing through the legislation to decriminalise male homosexual acts.  He sought to minimise hostility by making divorce easier, and by removing the necessity for both parties to agree, which obliged many to live in illegitimate unions.  He believed this would reduce illegitimacy and strengthen marriage and the family,

I am now pleading for those who find themselves joined in a dead marriage contracted years ago, who are unable to regularise their relationship or legitimise their children.  When they are told that the existing law is in existence because of the need to maintain it out of respect for the marriage contract, it is inevitable that they regard such a comment as cruel sententiousness.

Nevertheless, what he proposed would mean a spouse could be divorced without his having committed any matrimonial offence and against his will, a move which represented a revolutionary change in divorce law and would have consequences Abse never envisioned.  It also removed from the process any sense that divorce was socially irresponsible.

Two reports commissioned in 1966 reflected the continuing dispute between social accountability and individual emancipation, reaching contrary conclusions: the Archbishop of Canterbury’s Group recommended an inquest into each divorce, examining why the marriage had broken down; the newly formed Law Commission, a left-wing quango set up by Harold Wilson the year before, with strong links to the legal and social-work professions, wished to remove the notion of “fault”‘ entirely, on the ground that it increased “bitterness, distress and humiliation”.

The Divorce Reform Act 1969 which followed was a compromise between these two positions.  It did nothing to ‘buttress’ marriage, as intended by Parliament, but neither did it fully realise Abse’s ideal of removing hostility and rancour.  Petitions more than doubled: from 51,000 divorces in 1969 to 119,000 in 1972, affecting 131,000 children.

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Owens v Owens: the First Hearing

In May 2015, Tini Owens sought a divorce from her husband, Hugh, to whom she had been married for 38 years.  Their two children had long since left home and she had had an affair a couple of years before.  Tini and Hugh were living separately, but had not been separated for the two years requisite for a consent-based divorce.

A petitioner cannot use her own adultery as the basis of a divorce, so Tini’s only option was to use “unreasonable behaviour”.

The usual advice is to cite five or six things which have made a spouse impossible to live with.  These are summed up in a few short paragraphs in the petition, including the first and most recent events, the most serious, and all dates, if they are known.  Tini provided five examples.

Hugh returned his acknowledgement of service, expressing an intention to defend the divorce.  This is unusual: in 2016 only 2.28% of respondents expressed an intention to defend and only 0.67% filed an Answer as the first stage.  Only 17 cases reached court.

Tini was allowed to amend her petition, elaborating upon her description of Hugh’s mood swings and unpleasant disparagement into 27 separate allegations.

In court, Tini’s counsel, Philip Marshall QC, explained,

I can say straight away I do not propose, unless your Honour wishes me to do so, to go through each and every one of the 27 allegations.

The judge, Robin Tolson QC, replied,

I was going to ask if there is any measure of agreement as to the approach we should adopt to that? … I am asking about the forensic approach to 27 separate allegations, some older than others.

And Philip Marshall responded,

I simply propose to focus upon one or two of them, or three or four of them.  My client in her statement has confirmed the veracity of her petition and I will ask her to confirm that, and that will stand as her case to the extent it is supplemented in her witness statement which your Honour will, of course, have in due course.

Marshall focused on four of the allegations, all involving incidents which took place in public spaces or in front of others.  It was still a slow process, obliging Tolson to say,

Well, gentlemen, shall we get on, we have an awful lot of allegations to cover at some point in the next hour and a quarter.

In his judgment, Tolson recorded,

The agreed approach at the trial was not to investigate each and every allegation, but through examination and cross-examination of the history of the marriage and selected allegations to give the overall flavour or complexion of the case and of how personal perspective might have altered reality in terms of the pleaded matters.

The court of Appeal considered this “an unexceptional approach”.

The four incidents do not amount to much; they are unremarkable for a 38-year-old marriage which has lost its sparkle, though they need to be seen in context and as they might be perceived by Tini Owens, described by the Court as a particularly sensitive woman.  Mr Owens had said,

I think she had an ulterior motive for collecting all these, what, to my mind was a collection of molehills which she felt suited her purpose to build up into mountains because she had aspirations outside of our marriage.

Tolson accepted that the marriage had broken down, finding that the wife “cannot go on living with the husband” and continuing “he claims to believe that she can, indeed that she will, but in this in my judgment he is deluding himself”.  But Mrs Owens had not proved that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him.

Tolson directed himself,

In the present context, the law permits me to grant a decree of divorce only if I can find on a balance of probabilities that “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”.  Only then could I hold the marriage to have broken down irretrievably (if it has).  In determining the question whether this Respondent has behaved in such a way I apply an objective test – what would the hypothetical reasonable observer make of the allegations – but with subjective elements. I have to take into account the individual circumstances of the spouses and the marriage: “would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him taking into account the whole of the circumstances and the characters and personalities of the parties?”

He continued,

In reality, I find that the allegations of alleged unreasonable behaviour in this petition – all of them – are at best flimsy.  I would not have found unreasonable behaviour on the wife’s pleaded case.  As it is, having heard both parties give evidence, I am satisfied that the wife has exaggerated the context and seriousness of the allegations to a significant extent.  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.

Merely because she was unhappy in the marriage was not a justification for the court to grant her a divorce.

Divorce was introduced as a means by which a wronged party could seek legal remedy, usually for adultery.  Thus, the law requires that one party must find fault in the other: that they have defaulted in some way.  There is no provision for ending a marriage like that of the Owenses, where the parties are equally to blame.

The Appeal to the Court of Appeal

Mrs Owens now had a choice: she could have submitted a new petition; for example, in Stevens v Stevens [1979] 1 WLR 885, a wife’s petition was dismissed.  The marriage had broken down, but due to her own behaviour and she had not established a case against her husband.  She presented a second petition, based on behaviour that had occurred since the first hearing, and the divorce was granted.

Instead, Mrs Owens appealed the judgment to the Court of Appeal where it was heard by Lord Justice Munby, the President, and Lady Justice Hallett.

The basis of her appeal was that Tolson’s process had been flawed: he had not made core findings of fact, failed to assess properly her subjective characteristics, failed to assess the cumulative effect of her husband’s behaviour and failed to apply the law correctly to the facts.

She also argued that her Article 8 (respect for family life) and Article 12 (right to marry) Convention rights were being contravened.

The Court of Appeal considered precedents to determine the correct approach the lower court should have taken, none was recent.  Munby quoted Cairns LJ who had said in O’Neill v O’Neill [1975] 1 WLR 1118, 1121,

The right test is, in my opinion, accurately stated in Rayden on Divorce, 12th ed (1974), Vol.1, p 216:

The words ‘reasonably be expected’ prima facie suggest an objective test. Nevertheless, in considering what is reasonable, the Court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged) will have regard to the history of the marriage and to the individual spouses before it, and from this point of view will have regard to this petitioner and this respondent in assessing what is reasonable.

Munby continued to quote from Rayden,

In all these cases the totality of the evidence of the matrimonial history must be considered, and the conclusion will depend on whether the cumulative conduct was sufficiently serious to say that from a reasonable person’s point of after a consideration of any excuse or explanation which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called upon to endure it.

Munby cited, inter alia, Cumming-Bruce LJ who said in Balraj v Balraj (1980) 11 Fam Law 110,

…the court has to decide the single question whether the husband (for example) has so behaved that it is unreasonable to expect the wife to live with him.  In order to decide that, it is necessary to make findings of fact of what the husband actually did and then findings of fact upon the impact of his conduct on that particular lady.  As has been said again and again between a particular husband and a particular lady whose conduct and suffering are under scrutiny, there is of course a subjective element in the totality of the facts that are relevant to the solution but, when that subjective element has been evaluated, at the end of the day the question falls to be determined on an objective test.

Munby found that this was the law Tolson should have followed and that he had indeed followed it.  Matters had to be viewed from the perspective of 2017; the objective test had to be applied by reference to the standards of “the man or woman on the Boris bus with their Oyster Card in 2017” and not of “the man on the horse-drawn omnibus in Victorian times” or of “the man or woman on the Routemaster clutching their paper bus ticket” in 1969.

Munby found that Tolson had made core findings of fact, had assessed properly Mrs Owen’s subjective characteristics, had assessed the cumulative effect of her husband’s behaviour and had applied the law correctly to the facts.

Tolson had not been wrong to have examined only four of the 27 allegations made: the court was required to have regard to the overriding objective which requires the court to

  1. deal with every case expeditiously and fairly;
  2. deal with a case in ways which are proportionate to the nature, importance and complexity of the issues;
  3. save unnecessary expense; and
  4. allot to each case an appropriate share of the Court’s resources, while taking account of the need to allot resources to other cases.

Munby concluded that the Court of Appeal had no grounds to interfere with Judge Tolson’s decision and the human rights arguments were dismissed.  Although the Convention provides a right to marry, there is no corresponding right to divorce.

The Appeal to the Supreme Court

Again, Mrs Owens could have submitted a new petition, but instead she appealed further to the Supreme Court.  Like Munby, Lord Wilson was unable to find a precedent more recent than Balraj in 1988.

Resolution, the solicitors’ association, intervened in the case.  It contended that through the “unreasonable behaviour” subsection, the state “actively precipitates dispute”.  Resolution argued that the lower courts had been misinterpreting the subsection and that the focus should be on the petitioner’s reaction to the respondent’s behaviour and not on the behaviour itself.  The Supreme Court rejected this interpretation, “With respect to Resolution, its suggested interpretation of the subsection is incorrect”: “it is… impossible to avoid focus on the respondent’s behaviour, albeit assessed in the light of its effect on the petitioner”.

Mrs Owens had sought, unsuccessfully, to use this interpretation in the Court of Appeal, but wisely decided not to use it in the Supreme Court.

The Court admitted, “There is no denying that the appeal of Mrs Owens generates uneasy feelings”, but concluded,

The appeal of Mrs Owens must be dismissed.  She must remain married to Mr Owens for the time being.  Were she to continue to live apart from Mr Owens until 2020, he would surely have no defence to a petition then brought under section 1(2)(e) of the 1973 Act on the basis that they had lived apart for a continuous period of five years.

Lady Hale expressed the view that the correct disposal would have been to have allowed the appeal and to have sent the case back for a rehearing, but that would have been unacceptable both to the parties and to counsel, and it is unlikely it would have been heard before February 2020 when a simpler hearing can be conducted on the basis of five years’ separation.

The Media Response

The media response to the case was extraordinary and reflected the confusion generated by the “unreasonable behaviour” shorthand.

In the Guardian, for example, Suzanne Moore, who admits, contrary to all the evidence, to have no time for marriage which she thinks is “essentially about property and patriarchy” – tried to make out that Tini Owens was a “captive”, the vulnerable victim of an oppressive and paternalistic husband.  In reality, of course, an equally weak petition presented by a husband would have been just as likely to have failed.  She resurrected the tired old feminist myth that the “rule of thumb” derives from a husband’s right to beat his wife with a stick no thicker than his thumb, and claimed that the 1996 Family Law Act, which would have introduced a form of no-fault divorce, was shelved because the Blair Government was “terrified of the fundamentalists in Middle England and that great arbiter of morality, the Daily Mail”.  In reality, it became encumbered by amendments to make divorce dependent on financial and child resolution, as in Scotland, so that a “simple and elegant legislative scheme became exceedingly complex”.

The Campaign for “No-Fault”

In his Court of Appeal judgment, Munby had gone on to describe the long history of campaigning for the introduction of “no-fault divorce”.  This commenced with a former President, Sir Gorell Barnes, fulminating in 1906 (Dodd v Dodd [1906] P 189, 207),

That the present state of the English law of divorce and separation is not satisfactory can hardly be doubted.  The law is full of inconsistencies, anomalies, and inequalities amounting almost to absurdities; and it does not produce desirable results in certain important respects.

Munby observed that the law as it stands does already provide for divorce by consent,

The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 Act [two years separation with consent] but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of section 1(2)(b) [unreasonable behaviour].  It is ironic that collusion, which until the doctrine was abolished by section 9 of the 1969 Act was a bar to a decree, is now the foundation of countless petitions and decrees.

The reality is that if a couple wants a divorce they will find a way; a Royal Commission into marriage was established in 1909 and the King’s Proctor complained that 75% of divorces were by consent, using what was then referred to as “misconduct”.

This is a particularly dishonest situation, indeed, Munby observed in his judgment,

The simple fact, to speak plainly, is that in this respect the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty.

“Unreasonable behaviour” provides a normally simple and straightforward route to divorce, provided the parties collude and agree that one will make allegations designed to satisfy the law and not to reflect the truth.  This is the most popular way of obtaining a divorce, representing 45% of petitions in 2016.

The case of the campaigners for reform is that this no longer is acceptable and generates hostility.

In Scotland, in 2006, a solution was adopted by reducing the two-year wait to one and the five-year wait where there is no consent to two years.  The result is that 68% of petitions in 2015/16 relied on two-years’ separation without consent and 26% used one-year’s separation with consent.  This isn’t because Scots are inherently less argumentative than the English and Welsh, it’s just the easiest way to get a divorce.

Professor Liz Trinder, an enthusiastic advocate for reform, conducted research into fault-based divorce.  She rejected the status quo as unsustainable and a stricter enforcement of the law as unachievable.  She rejected the Scottish solution, too, as incompatible with the English/Welsh culture which favoured fault and opted for Resolution’s “notification” scheme in which one or both parties confirm their intention to divorce.  The report examines only its own internal evidence and relies on a survey of a poorly-informed general public.  It concluded,

The decision to divorce should be taken by the parties themselves.  In the twenty-first century, the state cannot, and should not, seek to decide whether someone’s marriage has broken down.  That should be a private family matter, properly determined by the parties, not the state.

There was no recognition, as Munby had recognised, that removing the decision entirely from the state would be an “extremely radical departure” from existing law and a redefining of the relationship between citizen and state.  Nor was there any perception of the very different divorcing behaviours of wives and husbands, or the likely unequal impact of reform.  Trinder’s was a militant agenda.

Resolution advocate a “no-fault” divorce process, that is, a process which does not require the petitioner to make allegations of fault against the respondent.  This is misleading, since there is already a process for no-fault divorce, as explained above.

What Resolution really want is divorce-by-consent, that is, the option for a couple to agree between themselves that they want a divorce and a process which enables them to do so without recrimination.  Again, this is misleading, since the existing process allows for this, if the couple have been separated for two years.

What Resolution propose is—

a new divorce procedure, where one or both partners can give notice that the marriage has broken down irretrievably.  The divorce can then proceed and, after a period of six months, if either or both partners still think they are making the right decision, the divorce is finalised.

This would have the advantage of reducing the two-year wait to six months.

Now, some aspects of Resolution’s campaign are concerning.  Their intervention in the Supreme Court appeal on the basis of a misinterpretation of the law is extraordinary.  We might also speculate that their guidance of Mrs Owens away from a new petition which might well have been successful into two highly publicised appeals was a deliberate attempt to gain as much publicity for their campaign as possible and to push Parliament into legislative action.  Their presentation of divorce by consent – which has always been anathema to legislators – as no-fault divorce also strikes me as deliberately dishonest.

The vigour of their campaign, and the fact that senior family judges such as Sir James Munby and Baroness Hale have repeatedly made speeches and added codas to their judgments advocating for no-fault divorce, apparently in opposition to their duty to uphold the law, fills one with misgiving.

The real issue with their proposal, however, is what happens when there is no consent.  After all, no-fault divorce by consent would not have aided Mrs Owens because her husband would not have consented.

The answer, though they do not elaborate on it, seems to be that under the new proposal, even if only one party thinks that the marriage has broken down irretrievably, a court will have to grant a divorce after the statutory six months.

That isn’t no-fault divorce and it certainly isn’t divorce by consent, it is unilateral divorce, and that’s an entirely different proposition.

Professor Stephen Baskerville, for example, calls this—

a unique and unprecedented legal anomaly in which one spouse could end a marriage with neither agreement nor fault by the other and break the marriage contract without liability for the costs.

Robert Whelan, former deputy director of independent think-tank Civitas, said that the—

essential element of contract law is abrogated.

Resolution’s members will no longer need trouble themselves about justice, about which party is responsible for the breakdown of a marriage, since both parties can be held responsible.  The laudable attempt to lessen the stress of divorce takes divorce as a remedy to breach or abuse away from the injured and legally innocent party and hands it instead to their abuser: what was intended as a measure to protect the integrity of marriage is made a route out of a marriage with which one party has become bored.

Far from eliminating the concept of fault, unilateral divorce imposes fault on the innocent party, who can be summoned to court despite having done nothing criminal and under a presumption of guilt for which there can be no defence.

Sir Edward Leigh MP has condemned no-fault divorce, claiming that evidence from countries such as the United States and Sweden shows that no-fault divorce has a—

demonstrable negative impact on income and educational achievement, with increases in anti-social behaviour.  Women become poorer, single mothers have to work longer hours, and children become more disadvantaged.

He warns,

It would be perverse to suggest it’s worth risking devastated lives for the rest of society just to tidy up the legal affairs of those couples who believe their marriage has irretrievably broken down.

Family lawyer Joe Robertson, Vice President of the Hampshire Law Society says unilateral divorce—

could inadvertently become a tool of emotional abuse and undermine stable families… There would be no opportunity for the respondent to be heard and no proper period for reflection.  Coupled with the rapid advent of online courts… divorce could be the click of a mouse away at the whim of one party in the heat of an argument.  A marriage created by consent but dissolved unilaterally would cease to be a legal union at all.  It would be the ultimate symbol of a consumer-led throwaway society and vulnerable women and children will be most at risk if things go wrong.

The Coalition for Marriage fear that unilateral divorce would “reduce the status of marriage to a tenancy contract”, punish the party who remained faithful to their vows, increase the number of divorces and put the most vulnerable at risk,

Weakening and trivialising an institution does not reform it, it breaks it.