Current divorce law is governed by the Matrimonial Causes Act 1973 (“MCA”). Section 1 of the MCA states that the only ground available for divorce is that the marriage has irretrievably broken down. To satisfy the Court that a marriage has irretrievably broken down a Petitioner has to show that at least one of the following “facts” are proven:

  • Adultery
  • Unreasonable behaviour
  • Desertion for a continuous period of at least 2 years
  • 2 years separation with the Respondent’s consent
  • 5 years separation

Therefore, unless there is a period of at least 2 years separation, divorce has to be based on either adultery or unreasonable behaviour, both of which involve elements of fault.

Many divorces are based on unreasonable behaviour. The test for unreasonable behaviour in Section 1 (2) (b) of the MCA is part subjective and part objective. The Court has to look subjectively at the alleged behaviour in the context of the particular marriage and the parties involved, and have regard to the cumulative effect of the Respondent’s behaviour on the marriage. The Court then has to ask itself the question whether “the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent”.

In the recent case of Owens v. Owens, Mrs Owens issued divorce proceedings based on unreasonable behaviour. The divorce petition was opposed by Mr Owens. By the time the case came to trial, Mrs Owens was relying on a total of 27 different allegations of unreasonable behaviour.

The trial Judge held that the allegations were “of a kind to be expected in marriage” and refused to grant a divorce. This was despite the fact that Mrs Owens was desperately unhappy and contended that there was no prospect of a reconciliation.

Mrs Owens appealed to the Court of Appeal.

The Court of Appeal acknowledged that Section 1 of the MCA must be interpreted “in the light of changing social norms” and questioned whether the existing law was fit for purpose by modern day standards. However, the Court of Appeal said that the Judge’s role is “to state the law not to make the law” and on the facts of the case, albeit reluctantly, dismissed the appeal.

For many years there have been calls for the current divorce law to be repealed and a “no fault” system introduced.

The Family Law Act 1996 contained provisions for the introduction of a no fault divorce system but those provisions were never implemented. Since then successive governments have shown little enthusiasm to repeal Section 1 of the MCA.

The family law solicitors association, Resolution, is proposing a new no fault divorce procedure where one or both parties to a marriage can give notice that the marriage has broken down irretrievably. After 6 months if either or both parties still believe that dissolving the marriage is the right decision the divorce can be finalised.

It is argued that a no fault divorce system would reduce the pressure on the Family Court and would be in line with the aim for more people to resolve issues arising from the breakdown of marriage outside of the Courts. In Owens v. Owens the Court of Appeal recognised that for many years there has effectively been “divorce by consent” where the petition is based on unreasonable behaviour. The allegations are drafted in such a way so as not to cause offence and to encourage the Respondent to cooperate with the procedure. A balance has to be struck because the allegations must be sufficient to satisfy the legal test in Section 1 (2) (b) of the MCA. The Court of Appeal said that in this respect the law the Judges have to apply and procedures which have to be followed are based on “hypocrisy and lack of intellectual honesty” which involves a “consensual, collusive” manipulation of the law.

In the year to January 2017 there were 113,996 Petitions for divorce, of which only about 0.67% resulted in the Respondent filing a defence. The reality therefore is that the legal test for unreasonable behaviour is only applied by the Courts with any rigour in a tiny minority of cases. As the Court of Appeal asked in Owens v. Owens: is the public policy which underlies our current divorce law still needed and can it be justified where its application is confined to such a minutely small number of cases?

The Court of Appeal’s decision in Owens v. Owens it is likely to give further impetus to those advocating a pressing need for a change in the law.

For help and guidance on family related matters please contact Solicitor, John Shurvinton on jshurvinton@gabbs.biz 





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