By Caragh Deery - Law Student @ St Hilda's College, Oxford
The previous position under the law was that marriage was the only relationship formally recognised by the law, or the only so-called "status relationship". There has long been disagreement as to what marriage is, however, the consensus for much of the 20th Century was that marriage was a 'union for life of one man and one woman' (Hyde v Hyde). Fortunately, in recent years, societal attitudes have observed a marked shift towards more liberal views, particularly in the context of same-sex marriage.
In response to changing views, the UK introduced civil partnerships with the Civil Partnership Act (CPA) 2004. Whilst there are some small differences, the CPA allowed gay couples to access the same tax, pension and inheritance benefits, and rights and entitlements as married couples for the first time. However, concerns about equality persisted, as there was a widespread view that civil partnerships were in some way "inferior" to marriage or a second-class alternative. These concerns led to the Marriage (Same Sex Couples) Act 2013, with the result that since 2014, gay couples have also been permitted to marry. The developments reflect significant legislative reform governing the entry of status relationships in England and Wales. But what about divorce law? The provisions governing the exit of marriage appear to have been overlooked.
The key legal provisions governing divorce are still found in the Matrimonial Causes Act 1973 (MCA). The actual ground for divorce under s1 MCA is 'irretrievable breakdown'. A party must show that the relationship has broken down irretrievably by proving one of five facts. The fault-based grounds are outlined in s1(2)(a)-1(2)(c) and are that the respondent: committed adultery, behaved in such a way that the petitioner can no longer reasonably be expected to live with him, or deserted the petitioner for a period of two years. S1(2)(d) -(1)(2)(e) outline the non-fault grounds. These are that the parties have been separated for two years and the respondent consents to the divorce or have been separated for five years where the divorce is contested. Only where one of these grounds can be made out will a request for divorce be granted.
The inadequacies of the rules governing the exit of marriages (and civil partnerships) have long been recognised. Importantly, under the current law, to obtain a divorce, parties have to prove one of the grounds in s1. This suggests that a petitioner has to 'justify' himself by establishing that he has a good reason for wanting a divorce. This position likely stems from the formerly held dominant view that marriage is a lifelong union.
Moreover, not only does the State scrutinise parties' reasons for obtaining a divorce, in some cases, s1 MCA has forced courts to conclude that they could not award a divorce at all. Owens v Owens highlighted this shocking inadequacy of the law. The Court held that the ground for divorce in s1(2)(b) MCA required not that the respondent's behaviour should have been unreasonable but that the expectation of continued life together should be unreasonable. It reasoned that uneasy feelings were insufficient, and the result was that the wife had to remain married to her husband for the time being; this meant remaining married for five years post-separation as the divorce was contested (i.e. the husband would not consent to the divorce).
By removing the decision to exit a marriage from the parties, the law is inadequate for several reasons. First, it fails to reflect individual autonomy. It cannot be right that the law can require somebody to remain in an unhappy marriage. Second, it gives scope for abusers to continue perpetrating abuse. Imagine that in Owens, Mr Owens had been an abusive partner (there is no suggestion that this was the case on the facts). He would have five years to convince Mrs Owens that he had changed and still loved her or coerce her into taking him back (both common abuse tactics). Parties may not always feel able to state the real reasons for divorcing their partner, so we must allow for a clean break to protect the most vulnerable. Third, as the 2019 Government Consultation Paper on divorce recognised, under the current law, couples are disincentivised from trying to make things work because of the risk that if they live together for too long, they will have to wait even longer in the event that they need to divorce, based on having lived apart for the required period.
These inadequacies led the court in Owens to remark that 'Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances.' This led to reform in the shape of the Divorce, Dissolution and Separation Act 2020, which comes into force in 2022. Part II of this piece will consider the adequacy of the reforms to resolve the issues identified above.
Further reading:
An overview of Owens v Owens: https://www.lawsociety.org.uk/en/topics/family-and-children/owens-and-owens - for a challenge, also try to read the Court's judgment in that case, available at: https://www.supremecourt.uk/cases/uksc-2017-0077.html
An overview of the existing law and what the reforms will change: https://www.kingsleynapley.co.uk/insights/blogs/family-law-blog/divorce-dissolution-and-separation-act-2020-the-end-of-fault-based-divorce-is-in-sight
The Government Consultation Paper leading up to the reforms (just read the executive summary): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/793642/reducing-family-conflict-consult-response.pdf