A union of two different individuals to embark a new journey of life together is called marriage. The couple’s marriage will usually be everlasting if both are happy with their marital life. But what if it is other way around, even a high school kid could tell the answer is divorce. Divorce in lay man’s term is a termination of marriage life by the court in legal proceeding. Office for National Statistics in United Kingdom has recorded that divorce of opposite sex couples in 2016 has reached 106,959 which is 20% lower than the recent peak in divorce rate in 2003 and 20041. One may infer from this data that the married couples settled in more stabilize and happier establishment of marriage institution. However, those low rates of divorce were merely a result of stringent law which shackles the freedom of couples to end their marriage life. Judicial figures and non-governmental organisation firmly do agrees with this notion and beseech for reform of divorce law2. Thus, the entire motion of this excursus is going to entail a very single but a complex theme of discussion which is whether the law of divorce is outdated and old-fashioned. Does the law is in need of reform?
Prior to canvass the essence of this discussion, the history and developments of divorce law has to be outlined. Today, Matrimonial Causes Act 19733 (MCA 1973) stands as the bedrock of the current law for divorce in UK and the couples has to prove facts specified in Part 1 of the Act to end their marriage. Before MCA 1973 comes into effect, divorce could only be granted by proving that the respondent had committed matrimonial offence such as adultery, cruelty and three years desertion by virtue of Matrimonial Causes Act 19374. Growing demands for a non fault based and consensual divorce between couples paved the way to Morton Commission of 1956 to review the law. This commission found an adverse finding with the publication of Archbishop of Canterbury Group’s report which disagrees matrimonial offence as the only ground of divorce and seeks for reform as the law ignores viability of marriage. Law Commission eventually agreed with Archbishop Group’s criticism of law and therefore reached for solution which was later encapsulated in Divorce Reform Act 19695. Thereafter, the latter statute has been consolidated with other relevant legislation in the MCA 1973 which remains the present law on divorce till now.
Today, the current law under S.1(1) of MCA 19736 requires the married couples to demonstrate that the marriage has irretrievably breakdown and that sole ground will enable the couples to establish either one of the five facts listed in S.1(2) to obtain divorce. Adultery, unreasonable behaviour, two years desertion, separation with consent for two years and separation on contested divorce for five years are among the enlisted grounds in the stated provision. These grounds for divorce are clearly a mix embodiment of both fault and non fault law where the couples shall no longer require to put a blame towards another and this has effectively removed barriers placed on consensual divorce. In order to find out where the real flaw is in the current law, a brief outline on each of the stated facts has to be discussed with relevant case law and authorities.
First and foremost, Adultery is embedded in S.1(2)(a) of MCA 19737 and by virtue of Dennis v Dennis8, adultery means an extramarital relationship where a married person voluntarily has sexual intercourse with a person of opposite sex but other than his/her spouse. The case law above thereafter requires the parties to fulfil three preconditions where there must be a complete act of intercourse, must be a voluntary intercourse and heterosexual couples only. The requirement therein laid down two vital elements on this fact which is adultery and intolerability. Denning LJ in Cleary v Cleary and Hutton9 held that if one could satisfy before the courts that he/she finds intolerable to live with their respective spouse, it is therefore suffice to invoke this ground even there is an absence of causal link between adultery and intolerability.
Unreasonable behaviour is rather a famous fact under S.1(2) where almost 62% couples in 2015 were granted decree absolute under this roof10. Unlike the former, this ground is totally facts driven as behaviour covers wide range of action, from mild family issue such as emotional abuse in Stevens v Stevens11 to serious commission of criminal offence in Katz v Katz12. Dunn J in Livingstone-Stallard v Livingstone-Stallard13 sets out a mixed test of both subjective and objective in nature which questions ‘would any reasonable person concludes that this husband behaved in a way that his wife cannot be expected reasonably live with him taking into account whole circumstances, character and personalities of the parties’. Thurlow v Thurlow14 ruled that behaviour can still be satisfied even if the respondent had any psychiatric illness and beyond their self control. However, a mere feeling or conscious is not capable being a suffice behaviour as per Pheasant v Pheasant15.
S.1(2)(c) of MCA 197316 dictates the third ground of two years desertion. It should be noted that out of the five facts, this is least likely to be relied as it is technical in concept and the latter in subsection (d) is easily established. Quorashi v Quorashi17 states desertion is an unjustifiable withdrawal from cohabitation without the consent of another spouse with the intention to live separately. The law here demands the couples to establish a physical separation where both parties must show two different household. Dennng LJ in Hopes v Hopes18 held that this requirement is not to be taken too literally as one can also establish separation under one roof but with absence of common life.
The separation facts under S.1(2)(d)19 and (e) of MCA 197320 are the example of reform done by Divorce Reform Act 1969 and those are currently the non fault based law that exists in the present law. Subsection (d) of the Act provides a consensual two years separation while subsection (e) on the other hand deals with contested five years separation divorce. Two years separation divorce has almost similar separation requisite as desertion above but comes with an additional element which is consent. Santos v Santos21 ruled that mere physical separation will not suffice where there has to be mental element considers the marriage has no future. This was later affirmed in Fuller v Fuller22. Going on to second half of law, McGill v Robson23 held that the consent requirement must be made positively rather than simply inferred from lack of protest. The final ground on S.1(2) is five years separation, also known as ‘Casanova Charter’ which is commonly used as last resort for any of the unsuccessful facts above. Similar concept in Santos will be used when the court is dealing with separation issue. Nonetheless, contrary to subsection (d), this fact is often seen as unilateral divorce where consent shall no longer required in dissolving the marriage institution.
Hence, the stream of this motion is going to flow on the criticisms that found in the above-outlined law and what makes the facts under MCA 1973 in need of immediate reform. After a meticulous analysis done, it has become clear that the law has not placed the parties in equal footings as it distorts the parties’ bargaining position. For adultery to be claimed successfully, the respondent must sign the acknowledgement of service which is served on them with divorce petition. This would definitely place the respondent in a stronger position compared to the petitioner as the former could use this advantage as a bargaining tool for their own benefit. For an instance, the respondent may demand the ancillary relief to be used in favour of them for the latter to sign on the acknowledgement form. Besides than adultery, the consent requirement on two years separation divorce almost plays a similar role as it places the respondent in a stronger position. The fact that consent can be withdrawn without reason before decree nisi is pronounced must be put in check because once the respondent agrees to consent, the petitioner may rely on it and embarks towards a further future plan. Although the law might defend this requirement by explaining that such change of mind in the given residual time would save the marriage from breakdown, a mere simple unexplained revocation of consent would not suffice. The respondent, therefore, needs to at least explain what are the causes of this sudden change of heart.
The recent case law of Owens v Owens24 gives a transparent illustration of how badly the divorce law is in need of reform. Mr and Mrs Owen separated in 2015 and the wife petitioned for divorce on the ground of unreasonable behaviour by her husband. Mr Owen contested for this divorce which leads to trial at Family Court. Judge Toulson ruled that despite the marriage has irretrievably broken down, family allegation by the wife was hopeless, anodyne and scrapping the bond. The allegation based upon series of incident in their married life was deemed that the behaviour of Mr Owen is not unreasonable at all. The wife thereafter appealed to Court of Appeal after losing the trial and Sir James Munby affirms the ruling of Judge Toulson and states that the only remedy for Ms Owen is to wait until 2020 to claim under five years separation. Following the judgement of Court of Appeal in 2017, this case law has attracted so many criticisms from both the public and judicial personnel. Should Ms Owen be trapped in a loveless marriage for another five years? Do the judges need to apply the same principles in this case for the future divorce trials? These are the questions raised towards the law. The fact that although the judge acknowledges no future in the couple’s marriage but couldn’t award the divorce as the law doesn’t offer any possible slots other than the long five years separation is a very good example that provides a strong platform for this confabulation which stresses the current divorce law is outdated and in need of reform.
Moreover, the existence of fault facts on the first three grounds under S.1(2) portrays nothing but unparallel to the very purpose of the law, which is to save the institution of marriage. Should a person is in need of immediate divorce, the only option that he resorts for is the fault based facts where the other two faultless facts require the couples to stay apart from each other for two years minimum. The impediment here grows more complex if the couple has really no intention to blame the other and then decides to go for it only because he has no other possible route. These ultimately brings back the old argument of consensual divorce barrier as this time the law here leaves no choice for the petitioner but to rely on fault divorce due to impotent faultless divorce. Shifting blame from one to another will not only affects the residual quality life of family but also can make the children of divorced parents to suffer depression, low academic performance and social life.
Now, knowing that the 1973 Act has so much of flaws and criticism, it is therefore cardinal to address what are the viable options of reform to patch up the law. Can the repealed Part II of Family Law Act 199625 (FLA 1996) be re-introduce today with several new features to overcome this problem? Part II though retains the irretrievable marriage breakdown, it rather proposed three faultless divorce factors. Those factors under S.5(1)26 of FLA 1996 was where at first, the statement of breakdown will be submitted after attending the information meeting. Then, a period of time for reflection and consideration to demonstrate such breakdown will be required. Thirdly and finally, application for divorce order will be obtained by settling their finance and children issue. All three factors have to be satisfied before divorce is granted. However, after two sets of disappointing pilot scheme, Lord Chancellor has decided to defer the implementation and in 2001, it was ultimately repealed by the parliament27.
The question here is whether the provision in Part II of 1996 Act28 can be effective as of today. It should be noted that the series of pilot scheme was conducted in 1997 was two decades ago and the opinion of people keeps changing in this rapidly modernised society. Whatever that is right today will eventually be wrong in the future. 90% of the respondents in the pilot scheme stated that attending the information meeting was useful as it increases the knowledge and empowers the citizens to take informed decisions. Thus, such feature could make the couples to decide what the logical approach is, to end their marital status. This will definitely reduces the risks of petition filed for divorce dismissed from the court for claiming in inappropriate grounds. For an instance, if a person is about to raise unreasonable behaviour by the spouse as per the facts of Owen v Owen, he/she will have the knowledge that his petition will most likely to be dismissed and has to rely on five years separation by attending the information meeting. This approach will probably be ideal where the majority couples goes through the divorce process without a solicitor’s aid.
However, it is not ideal to re-introduce the entire 1996 Act as it was completely a non fault based divorce. Although the public looking for an ideal faultless law, it doesn’t mean that the couples hates fault law entirely. Law Commission in 1990 stated that according to their public opinion survey, 71% of respondents voiced out the fault element in the law need not be completely abolished instead let it be part of the law29. Robert Rowthorn commented that absence of fault divorce which paves an easy unilateral exit from relationship makes it difficult for couples to engage in credible commitments to each other30. Hence, it is suggested to go for modified mixed grounds which composed of both fault and non fault divorce.
The most obvious and exemplary model that can be adopted is Family Law (Scotland) Act 200631 from the Scottish jurisdiction. Until 2006, Scotland was abide by Divorce (Scotland) Act 197632 which is similar to current UK divorce law, however it opted to make some modification and thus gives birth to 2006 Act. The two years consented separation period was reduced to one year and five years on the other hand significantly to two years. Then, the primitive desertion fact was also effectively abolished. It is submitted that once the couples decide to part away, it has to be done quickly and should not be prolonged as it could cause further strain between parties if they were to face the one who they dislikes each other daily under the same roof. Nonetheless, the law may intervene by stating that the given longer separation period is an attempt for the couple to reconcile and save the institution of marriage. Questions may arise that what does the divorce model in Scottish jurisdiction could accomplish in reforming the divorce law? Nuffield Foundation in their recent report in 2017 entitled Finding Fault? Divorce Law and Practice in England and Wales stated the reality of willingness to move on financially and emotionally means that most people will resort for the speed and certainty of behaviour over the separation period. It means those attempts of reconciliation is nothing but waste of time for the couples who have already made plans for their future. Moreover, adapting to Scotland’s jurisdiction will less likely to resolve the defects in MCA 1973 as problems associated with other fault elements such as adultery and unreasonable behaviour would still remains.
Law Commission in 1990 stated that almost 90% of the surveyed respondents thought that divorce by mutual consent should be available if the law is about to be reform. One could argue that the present law has already provided this feature in two years separation faultless fact. However, the consent criterion is currently subject to criticism and those defects were already outlined earlier. Besides, the two years period is considered to be too long for legal academicians such as Ruth Deech where she submitted that once the couples reached into consensus, granting an immediate divorce will most likely feasible as it could prevent the remaining relationship between couples from being deteriorate and end the marriage in smoothest way possible.33 Law Commission in 1990 yet rejected this option to be a model reform because mutual consent as a sole ground for divorce will undoubtedly brings back the unequal bargaining position issue.
Howbeit, it is suggested that this faultless divorce will be able to solve the issue of ‘give blame or waiting for ages’. Couples shall no longer be forced to opt in fault divorce due to longer waiting period if they can achieve divorce quickly. Thus, taking into account of problems stated by Law Commission, this immediate divorce via mutual consent can be a feasible option for reform provided with supplementary features that can prevent it from being used as advantage of others. Besides, it should also be noted that several EU neighbours such as Denmark34, Spain35, France36 and Sweden37 has already enacted statutes that affirms immediate separation if parties mutually consent. Thus, legislating this option will be able to put back UK on par with international divorce law approach where it will also hinders the law from not being outdated and obsolete.
Last but not least, Family Justice Review 201138 has revised a proposed plan for the process of divorce in England and Wales. It suggests that those who considering filing a petition for divorce should go to an information hub or ‘online divorce portal’ which would explain the process and procedure of divorce. Upon completion, the application will be submitted to an administrator who will check the details and then serve the petition on to the respondent. If the respondent consented, the administrator will issue notice of divorce. Suppose if the respondent contested, the administrator will forward this petition to court for judicial consideration. Sir James Munby, President of Family Division of the High Court added that the separating couples with consent should pursue their own separation with a trip to the registrar rather than having to go to court39. This will definitely modernise the divorce process of UK where parties shall no longer required going to nearest divorce centre as everything can be done via online. Aside from saving both money and time, this administrative proposal shall make judicial process less inquisitorial where judicial supervision will be limited only to contested petition.
A good discussion thereafter would never ends without analysing the possible impacts that could be encountered on politics, economics and social upon reforming the law. In political sense, the parliament would not face any challenges in reforming the current law as the recent Labour Party Manifesto 201740 included a commitment to introduce a no-fault divorce procedure. The rate of employment among women will probably be higher where thanks to reforming the divorce law, they will be self dependant and has to earn to support their daily life. However, problems may arise in social context where loosening the ritual of divorce could spell a shorter lifespan of marriage. For an instance, if parties felt dissatisfied with their marriage life, they can easily pronounce for divorce and get into new life without thinking for reconciliation.
In a nutshell, it is submitted that the present law is indeed outdated and cornered itself with so many flaws that the married couples unable to get out of their loveless relationship. However, the solution for this impediment has already outlined in the earlier discussion using models from foreign jurisdiction, proposals from legal academicians and even from the Law Commission’s report in 1990. Thus, it is left entirely to the parliament whether to follow this old fashioned law or to scrap it and legislate a new ideal law.
1 Nicola Haines, ‘Statistical bulletin: Divorces in England and Wales: 2016’ (18 October 2017)
2 Ayesha Vardag, ‘Divorce law in Britain is outdated – and designed to make couples suffer’ (26 April 2016)
< http://www.telegraph.co.uk/women/life/divorce-law-in-britain-is-outdated---and-designed-to-make-couple/> accessed on 15 December 2017
3 Matrimonial Causes Act 1973
4 Matrimonial Causes Act 1937
5 Divorce Reform Act 1969
6 Matrimonial Causes Act 1973, s 1(1)
7 Matrimonial Causes Act 1973, s 1(2)(a)
8 Dennis v Dennis (Spillett cited) 1955 P 153
9 Cleary v Cleary and Hutton 1974 1 WLR 73
11 Stevens v Stevens 1979 1 WLR 885
12 Katz v Katz 1972 1 WLR 955
13 Livingstone-Stallard v Livingstone-Stallard 1974 Fam 47
14 Thurlow v Thurlow 1976 Fam 32
15 Pheasant v Pheasant 1972 Fam 202
16 Matrimonial Causes Act 1973, s 1(2)(c)
17 Quorashi v Quorashi 1985 FLR 780
18 Hopes v Hopes 1949 2 KB 406
19 Matrimonial Causes Act 1973, s 1(2)(d)
20 Matrimonial Causes Act 1973, s 1(2)(e)
21 Santos v Santos 1972 Fam 247 (CA)
22 Fuller v Fuller 1973 1 WLR 730
23 McGill v Robson 1972 1 WLR 237
24 Owens v Owens 2017 EWCA Civ 182
25 Family Law Act 1996, Part 2
26 Family Law Act 1996, s 5(1)
27 Children and Families Act 2014, s 18
29 Law Commission, ‘The Ground for Divorce, Law Com No 192’ (1990) 7
30 Robert Rowthorn, ‘Marriage and Trust: Some Lessons from Economics’ (1999) 23(1) CJE 661-663
31 Family Law (Scotland) Act 2006
32 Divorce (Scotland) Act 1976
33 Ruth Deech, ‘Divorce Law and Empirical Studies’ (1990) 106 LQR 229
34 Danish Administration of Justice Act (Retsplejeloven) 1992, Art 448C
35 Spanish Civil Code amended 2004
36 French Civil Code amended 2004
37 Sweden Marriage Code 1987, Chapter 4
38 Family Justice Review (November 2011)
39 Catherine Baksi, ‘Take divorce out of judges’ hands – Munby’ (29 April 2014)
40 Labour Party Manifesto 2017