WEIGHING UP THE TRUE MEANING OF NO-FAULT DIVORCE
No-fault divorces will sap the foundations of the traditional meaning of marriage, argues Charles Chatterjee
The decision of the Supreme Court in Owens v Owens  UKSC 41 must have disappointed Mrs Owens, but ironically, it was her seeking a divorce from her husband that prompted the Supreme Court to provide a very useful interpretation of s1(2)(b) of the Matrimonial Causes Act 1973. Owens v Owens was unique in many ways, and the current legislation is inadequate to deal with the subject matter of their dispute. But, as Lady Hale pointed out it is not for the courts “to change the law laid down by parliament – the courts’ duty is only to interpret and apply the law the parliament has given to us”. Based on Owens v Owens the relevant provisions of the Matrimonial Causes Act 1973 may be amended, or repealed, to make way for a new version of the legislation. THE CASE IN BRIEF Mr and Mrs Owens were married in 1978 and they have two adult children.
During the marriage, with the support of Mrs Owens, Mr Owens established a successful business, and they each have significant wealth. At the time of filing the petition for a divorce, Mrs Owens was living separately in a property close to their matrimonial home in which Mr Owens was also living. Sometime in November 2012, Mrs Owens began an affair which ended in August 2013. Mrs Owens maintained that ‘affair’ was the result of a bad marriage, not the cause for divorce. Mrs Owens left the matrimonial home on 6 February 2015, and eventually occupied the property next door to the home. According to the Central Family Court in London their marriage had broken down, and Mrs Owens could not continue to live with Mr Owens. However, in December 2012, Mrs Owens handed a draft divorce petition to Mr Owens along with a letter written by her solicitors, but Mr Owens told Mrs Owens that “… if she filed the petition, he would never speak to her again”. Mrs Owens nevertheless filed the petition, but the judge rejected it by commenting that it “lacked beef ”, and Judge Tolson QC in the Central Family Court in London reminded the petitioner and her solicitors of the relevant provisions of the Family Law Protocol (2015). These state: “Where the divorce proceedings are issued on the basis of unreasonable behaviour, petitioners should be encouraged only to include brief details in the statement of case, sufficient to satisfy the court.”
Indeed, an affair with another person at the material time ran counter to the provision of the Family Law Protocol. However, in the meantime, Mrs Owens’ ‘affair’ came to an end; Mr and Mrs Owens again continued to live in the matrimonial home, and to a substantial extent lived together for another two years, but Mrs Owens continued to maintain a diary of incidents between them. In May 2015, Mrs Owens issued another petition citing the main allegation that: “Mr Owens had prioritised his work over their life at home; that his treatment of her had lacked love or affection; that he had often been moody and argumentative; that he had disparaged her in front of others; and that as a result she had felt unhappy, unappreciated, upset and embarrassed and had over many years grown apart from him.” Mr Owens largely denied the allegations, describing the marriage as “never emotionally intense”, but “successful”, adding that he and Mrs Owens “had learnt how to rub along”. Mr Owens defended the petition on the grounds that the behaviour cited by Mrs Owens did not satisfy the requirements of s1(2) (b) of the 1973 Act. The crux of this provision is that the onus is on the petitioner to establish that the respondent must have behaved in such a way that the petitioner could not reasonably be expected to live with him or her. In this case, Mrs Owens failed to satisfy this criterion before the Court of Appeal; hence her appeal was dismissed. However, the Court of Appeal granted her permission to appeal “on the basis of an argument that, when deciding whether a petitioner could not reasonably be expected to live with a respondent, it was the effect of the latter’s behaviour on the former, and not the behaviour per se, on which the court had to focus”. The petitioner abandoned that argument during the hearing before the Supreme Court. The Supreme Court dismissed the appeal. In his judgment, Lord Wilson stated, inter alia, that: “The degree of conflict between the parties which is evident in a fully defended suit will of itself suggest to the family court that in all likelihood their marriage has broken down, while it recognises that, unless and until repealed by Parliament, section 1 of the 1973 Act must conscientiously be applied, the family court takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being.” His Lordship also pointed out that “courts rarely stand in the way of a party seeking a divorce”. This is because if a “matrimonial relationship” develops a “crack in it”, whether, for example, on the grounds of an extra-marital affair, or for financial reasons, or for unreasonable behaviour on the part of the respondent, or for adultery on the part of a party to the marriage or the lack of love and affection which is expected of each other, mending that marriage would be a futile effort. Indeed, in maintaining such a view, His Lordship relied upon the work of Trinder and Sifton, two Nuffield (Oxford University) academics who also, in their work entitled No Contest: Defended Divorce in England and Wales (2018), stated: “The very active promotion of settlement at each stage, with lawyers and judges working in concert, reflects the dominant family justice perspective that agreed outcomes are less costly and damaging, than trying to apportion blame is a fruitless and inherently non-justiciable task and that defence is futile where one party has decided that the marriage is over.”
However, in order to maintain the sanctity of the institution of marriage the 1973 Act entered conditions to granting divorces. The interpretation provided by the Current Law Statutes (1973) of s1(2)(b) are worth considering in this context as in rendering its judgment in Owens v Owens, the Supreme Court seems to have closely followed it. THE JUDGMENT In addition to providing its justification for refusing the petition made by Mrs Owens along the lines of the interpretation of s1(2) (b) of the 1973 Act, the Court also relied upon the following precedents, in particular: 1 Pheasant v Pheasant 2 Livingstone-Stallard v Livingstone-Stallard 3 Thurlow v Thurlow 4 Stevens v Stevens 5 Balraj v Balraj In Pheasant v Pheasant, the High Court reminded the parties of the policy of the legislature which encouraged reconciliation and held that the husband (the petitioner) had failed to “establish that it was unreasonable to require him to live with the respondent”. The Court applied the ratio in Lissack v Lissack. According to Ormrod J, the word “expected” in s2(1)(b) of the 1973 Act meant “required”. The husband contended that the “wife had been unable to give the spontaneous demonstrative affection which his nature demanded, that he could not be reasonably expected to continue to live with her and that the marriage had irretrievably broken down”. The wife denied that the marriage had irretrievably broken down and indicated she would welcome his return.
Dismissing the petition, Ormrod J held that the emphasis in s2(1)(b) of the Divorce Reform Act 1969 was on the respondent’s behaviour, and how that impacted the life of the petitioner should not be looked at in isolation; in particular, whether it was unreasonable to expect the petitioner to put up with the respondent’s behaviour. The High Court applied the legal rationale in Lissack v Lissack. According to Ormrod J, there was nothing in the respondent’s (wife’s) behaviour “which could be regarded as a breach on her part of the obligation of the married state or as effectively contributory to the break-up of the marriage”. Furthermore, the husband had failed to establish that it was “unreasonable” for him to live with the respondent. The 1969 Act thus emphasised two issues which a petitioner for a divorce was required to establish by evidence: (a) that the behaviour of the respondent has so heavily impacted the life of the petitioner that he/ she found it difficult to live with him/her any longer; and (b) that attempts at reconciliation must be made by the petitioner to save the marriage. Whether a marriage has broken down “irretrievably” or not has to be proved by the petitioner, and the court has to look at the genuineness of the allegations. The petitioner’s allegation against the respondent was simply that the respondent (the wife) failed to give the petitioner the “spontaneous demonstrative affection which, according to the petitioner (the husband) his nature demanded and for which he craved”. Thus, it became impossible for him to live with his wife any longer, and that this situation must be construed as the cause of the breakdown of their marriage “irretrievably”. Section 2(1)(b) of the 1969 Act provided guidelines as to how “an irretrievable breakdown” of a marriage must be established. The criteria are five in number but they fall into two groups: three of them require separation for a period of years, but in the two remaining criteria separation is not an emotional element. Ormrod J stated that “the proof of these ‘facts’ must inevitably raise a very strong inference of irretrievable breakdown”. In fact, in Owens v Owens, the Supreme Court referred to a five-year separation between the husband and the wife for the purpose of effecting a divorce. Of course, if “adultery” is affirmed by a party, the legal position would be different.
Applying the criteria in Pheasant v Pheasant, the judge in Owens v Owens maintained that there was nothing “in the respondent’s behaviour which could be regarded as a breach on her part of any of the obligations of the married state or as effectively contributing to the break-up of the marriage”. In Livingstone-Stallard v Livingstone-Stallard, the parties were married in December 1969 Act; in February 1970, the husband locked the wife out of the matrimonial home, and the husband and wife lived apart until September 1970.
Following an argument in November 1972, the parties lived separately, and in January 1973, the wife presented a petition for divorce on the grounds that throughout the marriage, the husband had abused and criticised her, frequently deriding her behaviour and attitudes, and that she could not reasonably be expected to live with him. She maintained that their marriage had irretrievably broken down under s1(2)(b) of the 1973 Act. The husband contested the divorce petition. In this case, the court decided not to apply the ratio in Pheasant v Pheasant. Instead, it granted a decree nisi. Livingstone-Stallard indicated that a series of adverse incidents creating an unpleasant environment for the petitioner to live with his/her partner would be important to pronounce a decree nisi. Whereas Thurlow v Thurlow clearly established a “passive conduct behaviour” on the part of a wife may be justifiable for a divorce, Stevens v Stevens ironically established that although the wife’s behaviour was considered to be the cause of the irretrievable breakdown of the marriage, and the wife’s first petition for a divorce was dismissed by the court, on the second petition submitted by the wife, the court reached the conclusion that the husband’s behaviour was such that she could not reasonably be expected to live with him.
The court granted the wife a decree. In this case, the wife presented a petition for divorce in 1974 alleging that their marriage had broken down irretrievably. On To maintain the sanctity of the institution of marriage the 1973 Act entered conditions to granting divorces
Professor Charles Chatterjee who studied law at the University of Cambridge and the University of London is a Barrister in England and Wales and has also acted as an arbitrator. A commercial law specialist (international) with special interest and knowledge in international organisations and their functions in addition to court experience in law as a practising barrister in England and Wales. A consultant to international organisations and private corporations in addition to conducting capacity building training programmes in various countries. Articles in IICJ: “Recognition and Enforcement of Arbitral Awards: How Effective is Article V of the New York Convention of 1958?” International In-house Counsel Journal Vol. 9, No. 36, Summer (2016), 1 “Decisions of ICSID Tribunals on Procedural Issues may not be Confused with their Awards” International In-house Counsel Journal Vol. 10, No 37, (2016) “CAPE DISTRIBUTION LTD v CAPE INTERNATIONAL HOLDINGS PLC How a Parent Company May be Held Liable in Torts for the Negligence of its Subsidiaries”, International In-house Counsel Journal Vol.11, No. 42, (2018)