Divorce and financial settlements England and Wales are determined by the Matrimonial Causes Act 1973 which itself adopted aspects of the Divorce Reform Act 1969. It is beyond argument that life and marriage have changed in the last 50 years and yet the principles of 1960s and 1970s Britain continue to govern how men and women bring to an end unhappy marriages. Of course, case law plays its part in the interpretation of the statute but it is limited to just that: interpretation. When judges are applying the law they can only use what is in the 1973 Act not as a guide but as fact. While case law helps shape the divorce landscape, only a reform of the legislation itself can change the landscape, and that is what many family lawyers are pushing for.
In the recent case of Owens v Owens, Mrs Owens left the family home in 2015 after 37 years of marriage. She filed for divorce based upon her husband’s unreasonable behaviour, the most common ground relied upon. Mr Owens took the unusual step of defending the petition, which led to a court hearing. In January 2016 the court refused to grant the petition, saying that while the court acknowledged that Mrs Owens “could not go on living with the husband”, the behaviour described in Mrs Owen’s petition was that of “minor altercations of a kind to be expected in a marriage”. Mrs Owens appealed the decision in a move which was supported by Resolution (the national organisation of family lawyers committed to non-confrontational divorce, separation and other family problems and which has widely campaigned for the introduction of “no fault” divorce) and it has recently been announced that Resolution have unusually been granted permission to intervene in the case being heard at the Supreme Court on 17 May 2018.
It is quite absurd that in 2018 Mrs Owens cannot divorce her husband unless she blames him for the breakdown of the marriage or unless she waits for five years since she left the family home. By virtue of petitioning her husband she was clearly unhappy in the marriage and she also clearly did not want to blame him outright. Ironically, if she had petitioned on grounds stronger than “minor altercations of a kind to be expected in a marriage”, the likelihood is that her petition would have sailed through but she would have committed perjury in lying on a court document.
When a marriage ends, there is usually more than enough bitterness, hurt and anger without committing these emotions to a court document. If the petition allowed people a dignified route of separating, discussions over money, and more importantly children, may not become so heated.
Another major call for reform is what is often referred to as “the meal ticket for life” of wives receiving spousal maintenance from the former husbands. It is always with incredible difficulty that I explain to a husband who has caught the 6am train to the City every day for 20 years and now faces the breakdown of his marriage because his non-working wife has had an affair, that because the decision they both made in the marriage for her to bring up the children and not return to work, she could receive maintenance from him until he retires or even later. He didn’t want the marriage to end, he has worked hard and yet now he faces paying his ex-wife for life. The tide is turning and judges are beginning to tell wives that they have to “get a job” and will no longer be “supported for life”, as a judge famously told Mrs Wright in 2015. But for the wife whose homemaking has supported the husband to catch the 6am train, is this fair?
And where does that leave the couple who thought that the concept of “common law” marriage existed? Or the couple who chose not to marry? Family law does not currently cover these relationships, and couples are left relying on property and civil law. But these are not commercial or business relationship breakdowns; these are families, and the law should reflect this.
Experienced family solicitors are keenly aware of the chasm between clients’ expectations and the reality of the courts. Senior judicial figures are calling for reforms and on the ground, solicitors and barristers are too. It is not the view of a few radical practitioners but an informed view of the profession, and it is hoped that by permission being granted by Resolution to become a party to the Owens case that the winds of change are coming.