Finding Fault and No Contest – The Case for Matrimonial Law Reform
As Owens v Owens enters its final hearing in the Supreme Court, the ruling may yet be unable to shed any edifying light on how the Judiciary views the value of no-fault divorce.
While Lady Hale has long been a vocal advocate for a change in the law, as it stands, this case may be unable to offer the push the campaign needs despite it focusing considerable media attention on the cause.
At the first hearing of their contested divorce, the wife, Mrs Tini Owens, failed to convince the court that her marriage had broken down irretrievably. She was denied a decree and later appealed. Despite the appeal court recognising the strong argument that the law is out of step with modern thinking regarding marriage and divorce, it ruled that the law had been applied correctly in this case. Mrs Owens, the court suggested, would have to wait until she could apply under 1(2)(e) of the Matrimonial Causes Act 1973 in respect of five years’ separation.
The ongoing case has certainly fuelled interest in research which suggests just how damaging the English and Welsh fault-based system can be and some commentators are now at a loss as to why legislators are dragging their feet in making changes to current family law.
Under the Matrimonial Causes Act 1973, the proof of irretrievable breakdown (the only ground for divorce in England and Wales) requires the fulfilment of one of five “Facts” – in other words, the petitioner must blame the respondent for the demise of the relationship.
Two of the Facts rely on the fault of the respondent: adultery and unreasonable behaviour. While the other three rely on separation: desertion of two years, separation with the respondent’s consent to divorce, and five years’ separation without the respondent’s consent.
So, if you have been married for 18 months and realise you have made a mistake, you will need to find fault with your spouse and, in order for the marriage to be dissolved, he or she will need to admit this fault. If they do not, and decide to defend or “contest” the divorce, you will need to be prepared to either go to court or move out of the marital home and wait it out for five years.
So, we have a culture whereby unhappy spouses who want to end their marriage, and move on with their life, must find fault and tag the other party as “the guilty party”. It’s not a nice game.
Research from the Nuffield Foundation – in two reports: “Finding_Fault” published in 2017 and “No Contest” published in 2018 – found significant problems with the use of fault in the English and Welsh divorce system. It concluded that these problems have the potential to “trigger, or exacerbate, parental conflict” which can have a detrimental effect on children involved. And they are almost certainly a reason why some divorce financial settlements commence at a point of heated disagreement – not a good place to start when attempting to settle your financial future.
The research also found that the fault-based system “does not protect marriage or deter divorce”, in fact case files revealed the use of fault-based facts was associated with shorter marriages and quicker filing for divorce following a break up.
So, advocates for law reform wish to see the elimination of fault and the eradication of contested divorce (which although rare does still occur and generally involves time-consuming, acrimonious, and costly litigation – see Owens v Owens).
The alternative, as posited in the No Contest report, is a notification-based divorce system which allows one or both parties to register the irretrievable breakdown of the marriage and then, following a minimum period of six months, longer if one party disagrees, confirmation by one or both parties to this effect would precipitate the granting of a divorce.
There would be no need for judicial scrutiny and less likelihood of the current trend of fitting blame to the Facts. After all, as Professor Liz Trinder lead author of both reports, said, in the twenty-first century the state should not be seeking to decide whether someone’s marriage has broken down.
So, with Owens v Owens reaching its conclusion, what are the likely outcomes for divorcing parties? If Tini Owens loses, this could see respondent spouses deciding that delay is their friend; despite the costs, despite the court time, defending a divorce petition as the financially stronger party could be seen as having advantages.
Plus, the ramifications for divorce solicitors could be petitioners, at the outset, deciding to eschew the current predilection for anodyne language in divorce petitions (the possible causative factor in the court’s inability to grant Mrs Owens a divorce in the first place) in preference of more strongly-worded petitions. And how might this pan out – almost certainly more blame and more pain in the family courts.