John Bolch shares his views on the case behind the increased calls for no-fault divorce in England and Wales last week.
“Last Thursday the media spotlight was focused on the Supreme Court as Mrs Owens’ appeal against the refusal of the courts to grant her a divorce was heard. This case has led to renewed, and louder calls for the introduction of no-fault divorce in England and Wales.
But what exactly were the lawyers arguing about before the Supreme Court justices? Surely, if the current law says that the husband’s behaviour had to be sufficiently bad as to show that the marriage had irretrievably broken down, and the judge found that it hadn’t, that is the end of the matter?
I suspect that this, or something like it, maybe the view of a lot of people who have been following the case, including many lawyers. To expand the argument, the case is surely just an example of the current law working as it was designed to do, and any change in the law is a matter for parliament, not the courts.
Let’s start with what arguments were put forward on behalf of Mrs Owens. Well, I’ll do that in just a moment, but before I do I think I should quickly set out what the current law says, for the benefit of non-lawyers.
Our current divorce law is set out in the Matrimonial Causes Act 1973, as amended. For the purpose of this post, the relevant law is set out in section 1(2) which says (in relation to divorce petitions based upon the respondent’s behaviour):
“The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court … that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”
That seems at first glance to be quite clear – to get her divorce, the petitioner must satisfy the court that the respondent had behaved in such a way that she could not reasonably be expected to live with him. Obviously, the judge hearing the Owens case was not satisfied that Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him, hence Mrs Owens was refused her divorce.
Correct? Well, let us see what the lawyers said (the following is, of course, a very brief summary).
It was pointed out on behalf of Mrs Owens that the judge who originally heard the case accepted as a fact that the marriage had irretrievably broken down, but despite that he felt unable to grant her a divorce, as he did not find that Mr Owens’ behaviour was sufficiently unreasonable.
In other words, the law required the petitioner to establish a minimum level of bad behaviour, and it was for the court to judge whether that level had been reached
This approach, Mrs Owens’ lawyers (including the lawyer for Resolution, who were given leave to intervene in the case) said, involved the judge falling into a ‘linguistic trap’ when interpreting section 1(2). The trap was to believe that the behaviour had to be unreasonable, in the view of the judge, rather than unreasonable from the point of view of the effect it had upon the petitioner. If the judge had taken the latter approach, then he would have seen that Mrs Owens found Mr Owens’ behaviour so unreasonable that she could not reasonably be expected to live with him.
Needless to say, counsel for Mr Owens did not accept this. He said that the judge had applied the law correctly, as courts had understood it for nearly fifty years. In any event, if the law was as suggested on behalf of Mrs Owens, that in effect amounted to a system of ‘divorce on demand’, as any petitioner could simply declare that she could not be expected to live with the respondent, and that was clearly not what parliament had intended when the present law was formulated.
At this point, you may be thinking that all of this is a little bit esoteric. Isn’t the only important thing whether or not the marriage has broken down? Well, yes. And, as you may be expecting, I will finish with the obvious point, which must have been like an elephant standing in the middle of the Supreme Court chamber: that all of this horribly intrusive investigation of what should be the private affairs of a couple could so easily be averted by the introduction of a system of no-fault divorce.”