Marriage and divorce: law reform long overdue

Senior judicial figures have renewed calls for “no-fault” divorce and other reforms, such as clean-break financial settlements and better protection for cohabiting partners and couples whose religious weddings have not been formally registered. ICLR’s Paul Magrath considers the current state of the law and the prospects of reform.

Lady Hale, President of the Supreme Court, and Sir James Munby, President of the Family Division of the High Court of England and Wales, have both recently voiced their support for divorce reform. The current law is still governed by a statute drafted nearly half a century ago: section 1 of the Matrimonial Causes Act 1973 re-enacted equivalent provisions in the Divorce Reform Act 1969. But as Sir James Munby noted in Owens v Owens [2017] EWCA Civ 182; [2017] 4 WLR 74 at [38] in the Court of Appeal, “times have moved on since 1969, and … the law is badly out-of-date, indeed antediluvian”.

Owens is currently awaiting an appeal hearing in the Supreme Court but the kind of reform needed cannot be achieved through case law, even by the Supreme Court adopting a modern, purposive construction of an outdated statute. It has to be done by statute, either by amending the existing section 1 (as David Burrows proposes in a recent post on the ICLR blog, Family law: Mrs Owens – a divorce in 2017) or by enacting a whole new Act.

The need for legislation was recognised two decades ago. As a recent House of Commons Briefing Paper (Number 01409) on No Fault Divorce notes, “Part 2 of the Family Law Act 1996 would have introduced ‘no-fault divorce’ and required the parties to a divorce to attend ‘information meetings’ with a view to encouraging reconciliation where possible.” But the mediation pilot scheme proved “unworkable” and the relevant provisions were eventually repealed.

The point about “no-fault” divorce is that, under the current law, a petitioner seeking divorce from their spouse needs to establish that the marriage has irretrievably broken down by reference to one of five factual scenarios, such as the fact that the other party has committed adultery, or deserted them, or their behaviour is such that it would be unreasonable to expect the petitioner to continue in the marriage, or that they have been living apart for a period of time (two years, with consent, five without). Most of these import an element of fault on one side at least. While that may have been thought a necessary moral brake-pedal in the Swinging Sixties, when the prospect of easy divorce was viewed with concern, it is now giving rise to dishonest and deceitful stratagems to get round what is basically just a procedural obstacle.

Thus a recent research project led by Professor Liz Trinder at Exeter University, Finding Fault? Divorce Law and Practice in England and Wales, reported that many parties were lying about each other’s conduct (consensually or otherwise) in order to expedite the divorce process, resulting in unnecessary stress, aggravation and delay.

Another problem the law needs to address is the position of those whose relationship ends but who, not being formally married, cannot even rely on the current divorce laws to protect their financial position after a breakup. This affects not only cohabiting couples – among whom there is a widespread belief in the “myth” of “common law marriage” which the family lawyer association Resolution has been trying to address with its current Cohabitation Awareness Week – but also those who have been through a religious wedding ceremony that has not been legally recorded by civil registration.

The latter problem was the subject of a Channel 4 documentary, The Truth About Muslim Marriage, which reported on a survey of 900 women who had been through a nikah, or traditional Muslim wedding, but had not had a civil ceremony or registration under the Marriage Act 1949. Aina Khan, a family lawyer and specialist in Islamic law, has founded the Register Our Marriage campaign with a petition to change the law.

Finally, in relation to the resolution of financial claims after splitting up, reform has been proposed in a private members bill introduced by Baroness Deech in the House of Lords, to do away with the “disproportionate” awards to some former spouses and to make prenuptial contracts binding. These reforms are described as aiming to “end the ‘meal ticket for life’ maintenance awards” that some courts are allegedly making on divorce, and align the law more closely with the “clean break” approach favoured in Scotland’s laws by restricting spousal maintenance in most cases to three or five years.

Of course, problems with dividing the spoils only tend to arise where there are spoils to divide, and the widely publicised “big money” cases with which Baroness Deech may be most concerned are hardly likely to affect the problems of those who cannot even get legal aid to defend their interests after an unregistered relationship breaks down. But hopefully the law reform that Lady Hale and others is calling for will cater for all these eventualities with fairness and justice.

As to prenuptial contracts, if they do become a thing at English law, there is speculation in the papers this week that a certain newly engaged couple may wish to avail themselves of the opportunity. Let’s hope they take their lead from the great-granddaddy and great-granny of royal marriages, that of Her Majesty the Queen and Prince Philip, and live to see their platinum anniversary, and don’t follow the example of some of the less successful royal matches over the years. For the benefit of her commoners, however, let’s hope Her Majesty will soon be able to give her royal assent to a forthcoming Divorce Reform Act. It is long overdue.

Paul Magrath is Head of Product Development and Online Content at the Incorporated Council of Law Reporting for England and Wales (ICLR). He tweets as @Maggotlaw