The fault and non-fault based facts, the essay

 

The end of a marriage
is inevitably an emotional, complex experience that ultimately results in the
division of families. Similarly, the law of divorce is also quite complex. Courts
face the strenuous task of not only dividing the financial provisions in cases
of children and property allocations, but they have to initially approve the
divorce according to legislation. Under section 1(1) of the Matrimonial Causes
Act 1973, only one ground for divorce is established and that is to prove that
a marriage has irretrievably broken down.1 The
recent Court of Appeal’s surprising decision in Owens v Owens (2017) has
provoked considerable amounts of criticism on this particular aspect of the law
of divorce.2
The Court ultimately refused the plaintiff from acquiring the divorce due to the
current legislation and this invited criticism on the largely fault-based standards
indicating that the English law on divorce is antiquated. This essay will aim
to analyze the decision made in Owens v
Owens and the substantial setback created for divorcing couples due to the
outdated divorce laws. Though, English law on divorce does currently operate based
on fault and non-fault based facts, the essay will suggest a further need for
reform in that there should be a pure no-fault divorce factor to reduce
conflicts among the parties involved.

 

The ruling in Owens
v Owens aroused scrutiny in regards to problems and inadequacies in the law
of fault-based divorce. The petitioner, Mrs. Owens, filed for a divorce from
Mr. Owens based on his unreasonable behaviour according to section 1(2)(b) of
MCA 1973.3
The behaviour that she complained of included Mr. Owen’s lack of affection and
attention, prioritising his work over family life, frequent arguments between
the parties, and speaking about her in a disrespectful manner.4 It
is assumed that most allegations of this particular kind would go through the
courts undefended and thus, would require no proof of the alleged behaviour.

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However, in this case, Mr. Owens defended the divorce and stated that the
marriage had not deteriorated despite the parties leading separate lives.5 In
regards to section 1(2)(b) of the MCA 1973, it is required that the plaintiff
shows proof that the other party has behaved in a manner where the appellant
cannot reasonably be expected to live with the individual afterwards.6 Based
on this, the Court of Appeal decided that the divorce should not be granted to
Mrs. Owens because there is no proof of such behaviour on Mr. Owens’ behalf.7 Therefore,
since one party does not agree to the divorce, it is only after 5 years of
separation that Mrs. Owens will finally be eligible for a decree nisi of
divorce even if her husband still objects to it.8
Unfortunately, till then, due to the current law of divorce, Mrs. Owens will
have to remain married although she can be living in a different house separate
from Mr. Owens. Thus, it is considered to be unjust that Mrs. Owens is left in
a disadvantageous situation and must remain in a loveless and unhappy marriage.9,10
Clearly their relationship had broken down and Mrs. Owens was desperate to
bring the marriage to an end and reach a financial settlement that would enable
her to move on. As will be discussed, the judges of the Court of Appeal did not
agree with the law for the reason the decision was unfair and made on outdated
laws, but they were unable to divert from legislation.

 

While it can be
suggested that Mr. and Mrs. Owens’ petition for divorce was on the fault-based
facts of adultery or unreasonable behaviour, the legal basis to approve a
divorce plea is provided in section 1(1) of the MCA 1973 in that the plaintiff
must prove that the marriage has irretrievably broken down.11 Furthermore,
an individual who brings forth a divorce appeal must be able to prove that the
marriage has deteriorated according to one of the five facts listed in section
1(2) of the MCA 1973, which includes adultery, unreasonable behaviour,
desertion for two years, or separation of either 2 years with consent or 5
years without consent.12 As
aforementioned, though the judges were not fond of the outcome, the Court of
Appeal had applied the law correctly by stating that Mr. Owens’ behaviour was
not such that Mrs. Owens could not reasonably be expected to live with him. However,
President Sir James Munby and Lady Justice Hallett did not agree with the approach
of the law and evidently referred to it being outdated.13 In
his judgement, Sir James Munby said that the laws and practices that the judges
have to follow are typically based on hypocrisy and lack of intellectual
honesty.14
Unfortunately, the judges in this case had their hands tied by the law as they
could not look past the legislation despite the fact they were not content with
the consequence of applying the appropriate laws.15 While
the judges of the Court of Appeal were unable to overturn the decision made in
the case due to the current law, laws relating to divorce are considered to be out
of date in that fault needs to be identified to the Court for approval of
divorce. As a result, this causes unnecessary blame and litigation between the
parties. Due to the need of proof of fault at the time of divorce, couples are
ultimately forced to embarrass each other, whether sincerely or not, to support
the idea that one of them has to be at fault for their separation.16 This
is archaic as it is cruel, generally causing two individuals to become hostile
and bitter towards each other. The concept of proving fault comes from historic
legal practice where the Church of England saw divorce to be contrary to the
public policy and one had to have a legitimate reason as to separation known as
a matrimonial offence.17 On
the contrary, nowadays in modern times, divorce is far less stigmatized and
very rarely contested.18 Thus,
it is to be considered that the introduction of true no-fault divorce into
English divorce law would be highly encouraged.

 

Based on the ruling
from Owens v Owens and the indication that the current legislation on
divorce is outdated, the law should be amended to allow true no-fault divorce. The
no-fault facts found in the MCA 1973 were previous reforms made to the law of
divorce.19  However,
based on the decision in Owens v Owens, it is evident that such reforms
are not enough and that there is a pressing need for further amendments on the
law of divorce in England. Couples should have the option to decide
jointly that their marriage had broken down irretrievably, without either party
being required to satisfy the courts of any other facts.20 This
modification would allow parties to get a divorce without blame and without increasing
animosity between themselves. Clearly, once a party has decided on divorce and
proceeds to the Court, the differences within the marriage are obviously
irreconcilable. Either party should not be compelled to remain in an unhappy
relationship due to the current law and it is unjust one party cannot obtain a
divorce if the other party objects to it. Furthermore, with the introduction of
a true no-fault divorce, the individuals would not have to wait 2 or 5 years to
obtain a decree nisi of divorce. At the moment, it is hugely unhelpful
that there is still a factor in the law of divorce which requires parties to
blame one another if they wish to obtain a divorce in the first two years of
separation. As Richard Bacon suggests, this reform would be added to the current
legislation and it would only apply when both parties have agreed and signed
such a declaration.21 Evidently,
a pure no-fault divorce would make the divorce process a predominately administrative
procedure rather than largely court-based.22
This would allow individuals to simply state that their marriage does not
satisfy their own standards as opposed to being forced to prove to their court
with evidence that their marriage has broken down. However, the reform of introducing
a true no-fault divorce will not completely eliminate the existing provisions
of the law. Those requirements which demand the allocation of fault and blame would
still be available to those who wish to avail themselves to them.23

 

Further to the potential
reform, according to the Law Commission, a marriage that has broken down is
considered to be an empty shell and the content of good divorce law must aim to
minimize hostility and humiliation amongst the parties involved. 24
It should also allow for maximum fairness between the plaintiff and the
respondent.25
If one spouse wishes to separate from the other party, then there is little
value in forcing the couple to remain married. With a no-fault divorce, the
separation will happen immediately, assuming the parties have undergone
consultation, inevitably resulting in less conflict between both parties. Whereas,
under the current law, finding fault prolongs the divorce process and increases
the risk of hostility, especially in situations of financial difficulties.26 Realistically,
it is simply unjust for anyone wanting a divorce to put their lives on hold for
2 or 5 years due to the fact they are required to find fault in the other party
involved. Thus, according to Baroness Hale, a no-fault divorce should be
implemented in order to lighten the need for allegations of blame.27

 

Additionally, it is
notable to take into consideration whether the right to divorce is a human
right.28 Generally,
forcing an individual to remain married against their wishes would be
considered an infringement on their right to marry or right to family life.29 With
the introduction of a true no-fault divorce, parties will be able to settle
disputes with less conflicts and move on with their lives. Furthermore, in
order for the general reform to allow a true no-fault divorce, it is suggested
that the content of this particular divorce, especially for those who are
parents, should not only revolve around their own standards of the divorce
mentioned above, but should prioritize the interests of children.30 In
the case of a fault-based divorce, it is highly likely that bitterness is
increased amongst the parents as they try to prove who is the better parent in
terms of child custody. It is to be noted that the introduction of a pure
no-fault divorce takes into consideration doing the right thing for children
and assuring that their best-interests are taken into regard when approving the
divorce.31
Unfortunately, the current law on determining matrimonial fault is failing to
achieve the objective put forth by the Law Commission.32

1 Matrimonial Causes Act 1973, s1(1)

2 2017 EWCA Civ 182 (CA)

3 ibid

4 ibid

5 ibid

6 Ash v Ash 1972
1 All ER 582 140 (Bagnall J)

7 Owens (n
2).

8 Matrimonial
Causes Act 1973, s 1(2)(e)

9 Jonathan Herring, Family Law (8th edn,
Pearson Education Limited 2017) 152.

10 Owens (n 2)
83 (Sir James Munby P)

11 Matrimonial Causes Act 1973 (n 1).

12 Matrimonial
Causes Act 1973, s1(2)

13 Owens (n 2)
38 (Sir James Munby P)

14 Owens (n 2)
94 (Sir James Munby P)

15 Owens (n 2)
99 (Hallett LJ)

16 Syed Jaffer Hussain, Marriage Breakdown
and Divorce Law Reform in Contemporary Society: A Comparative Study of USA, UK
& India (Concept Publishing Company 1982)

17 Jane Lewis and Patrick Wallis, ‘Fault,
Breakdown, and the Church of England’s Involvement in the 1969 Divorce Reform’
(2000) 11 Twentieth Century British History 308

18 ‘Divorce court: Woman in battle to
separate from husband’ BBC News (United Kingdom, 15 February 2017)

19 Ezra Hasson, ‘Setting a Standard or
Reflecting Reality? The ‘Role’ of Divorce Law, and the Case of the Family Law
Act 1996′ (2003) 17 International Journal of Law, Policy and the Family
338

20 House of Commons Library, ‘Briefing
Paper: No Fault Divorce,’ 17 October 2017

21 ibid

22 Ministry of Justice, ‘Family Justice
Review: Final Paper,’ (Gov.uk, 3 November 2011)

accessed 29 December 2017

23 ibid

24 Reform of the Grounds of Divorce: The
Field of Choice, Law Commission (Cmnd 3123, 1966)

25 Reform of the Grounds of Divorce: The
Field of Choice, Law Commission (Cmnd 3123, 1966)

26 Herring (n 9) 164

27 House of Commons
Library (n 16)

28 Ram Rivlini, ‘The
Right to Divorce: Its Direction and Why it Matters’ (2013) 4 International
Journal of Jurisprudence of the Family 133

29 ibid

30 Reece (2003) Divorcing Responsibly,
Oxford: Hart

31 ibid

32 Hasson (n 15)

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