Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
By Milly Munro
Come autumn 2021, divorce law in England and Wales will be subject to its biggest change in years with the introduction of the Divorce, Dissolution and Separation Bill, which passed its second reading in June 2020. The current divorce law in England and Wales has been the subject of much criticism ever since the Matrimonial Causes Act[1] was introduced in 1973. A significant portion of backlash centred around the so-called ‘blame game’ – under the Act, in order to be granted a divorce you must prove irretrievable breakdown via one, or more, of the five facts listed in the Act: adultery, unreasonable behaviour, desertion, two-year separation with the consent of the other party or five-year separation without consent of the other party. The problems with this are numerous but most significantly, it requires that one party must be at fault. This is problematic because there are numerous examples of divorce in which nobody has acted badly, the parties have simply grown apart and wish to live their lives separately. In these cases, the couple must live out a two-year separation period in order to qualify, which seems largely unfair if both parties want to divorce. In situations where the wish to divorce is one-sided, the requirement is even more arduous: a five-year separation, and no case illustrates the unfairness of this more than that of Owens v Owens.[2]
Mrs Owens brought a petition to divorce her husband of 40 years and the case made it all the way up to the UK Supreme Court. Examples of behaviours listed in the petition included Mr Owens being moody, argumentative and disparaging her in front of others.[3] The unfortunate reality of the case was that Mr Owens’ behaviour wasn’t unreasonable enough; Mrs Owens had simply fallen out of love. In the eyes of the law, that was not sufficient to warrant a divorce and Mrs Owens was forced to stay in her marriage. Lady Hale described it at the time as a “very troubling case”,[4] whilst Wilson LJ admitted that the whole case generated “uneasy feelings”[5] and recommended that Parliament re-examine divorce law in England and Wales.
Marriage has long been seen as a sacred entity, one that should, if possible, be preserved. It is therefore, perhaps, no wonder that the law has made divorce “relatively difficult to obtain”.[6] There are surely far worse things the law could do than to try and salvage a marriage. Ezra Hasson has argued that “conceptions of marriage were central to the Idealist belief that divorce law should set the standard for relational behaviour […] marriage […] was viewed as central to the basic organisation of social life”.[7] A cynic, however, might argue that it is merely a demonstration of the overly paternalistic nature of divorce law. If a couple has simply grown apart, it seems somewhat ludicrous that the law requires them to demonstrate this via years of separation. Moreover, it is debatable whether this idealist view of marriage is as strong as it once was; according to government figures, although marriage remains the most popular form of cohabitation, marriage has been in a steady decline since 1972.[8] Despite the enduring popularity of marriage, these figures suggest that the new bill is more in line with current societal trends in England and Wales, much to the relief of the critics of the previous legislation.
Given the current global climate, it is impossible to say with any certainty exactly what kind of impact the new bill will have on family law in England and Wales. However, it seems logical to argue that the new bill represents a fresh and much-needed change to divorce legislation. The law must be adapted and, if necessary, changed or replaced to fit modern England and it seems that this new bill is a prime example of that. It will be fascinating to see how this bill reshapes divorce law in England and Wales in the future.
Sources [1] Matrimonial Causes Act 1973 [2] Owens v Owens [2018] UKSC 41 [3] UK Supreme Court, ‘Owens v Owens Press Summary’ (25 July 2018) <https://www.supremecourt.uk/cases/docs/uksc-2017-0077-press-summary.pdf> accessed 30 November 2020 [4] Owens v Owens [2018] UKSC 41 Hale LJ [46] [5] ibid Wilson LJ [42] [6] Charlotte Bendall, ‘Should We Welcome an End to the 'Blame Game'? Reflecting on Experiences of Civil Partnership’ [2020] 61(5) Dissolution Journal of Divorce and Remarriage 344 [7] Ezra Hasson, ‘Setting a Standard or Reflecting Reality? The Role of Divorce Law, and the Case of the Family Law Act 1996’ [2003] 17(3) International Journal of Law and Policy and the Family 338, p342 [8] Office for National Statistics, ‘Marriages in England and Wales: 2017’ (Office for National Statistics, 14 April 2020) <https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2017> accessed 30 November 2020
Bibliography
Bendall C., ‘Should We Welcome an End to the 'Blame Game'? Reflecting on Experiences of Civil Partnership’ [2020] 61(5) Dissolution Journal of Divorce and Remarriage 344
Hasson E., ‘Setting a Standard or Reflecting Reality? The Role of Divorce Law, and the Case of the Family Law Act 1996’ [2003] 17(3) International Journal of Law and Policy and the Family 338, p342
Matrimonial Causes Act 1973
Office for National Statistics, ‘Marriages in England and Wales: 2017’ (Office for National Statistics, 14 April 2020) <https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2017> accessed 30 November 2020
Owens v Owens [2018] UKSC 41
UK Supreme Court, ‘Owens v Owens Press Summary’ (25 July 2018) <https://www.supremecourt.uk/cases/docs/uksc-2017-0077-press-summary.pdf> accessed 30 November 2020
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