The current law on divorce is criticised for sustaining an old-fashioned,
needlessly lengthy procedure which creates a confrontational forum for feuds
between families. Although the MCA 1973 aimed to reform divorce law, the lack
of change has resulted in individuals being at risk of becoming a prisoner, in
an empty-shell marriage, should their spouse refuse consent or defend the
petition (that the marriage has broken down irretrievably). Section 1 requires
that the petitioner must feel that the behaviour committed by their spouse was
so unreasonable that they cannot be expected to live with him/her. Petitioners
who are unable to rely on the grounds of desertion or separation, are forced to
rely on fault based on facts of ‘adultery’ under section 1(2)(a) or
‘unreasonable behaviour’ under section 1(2)(b). A ‘fault based’ system requires
blame which, shreds any last trace of love and respect that would have
otherwise remained in the family, often creating a hostile environment for
Worse still, the difficulty
of the system is contrary to public policy and the dominant moral code. The
Committee on Procedure in Matrimonial Causes 1947 placed a great prominence1 on
the preserving the marriage and encouraging reconciliation in cases where there
was even a slight chance of success. However, the nature of the external moral
code contained within the law has been associated with a hidden policy agenda
to recapture pre-war society. Hence, feminist writers have perceived the
incorporation of family law into a wider correctional or moral code in post-war
The Government’s failure to
implement new law in accordance with modern times has caused harm and intrusion
in the lives of citizens such as in Owens
v Owens 2017. After 37 years of marriage, Mrs Owens petitioned for a
divorce relying on unreasonable behaviour. Mr Owens, unconventionally sought to
defend the divorce, denying all 27 allegations which his wife made against him.
It was determined by Judge Toulson that her complaints were “minor altercations of a kind to be expected in a marriage”2
thus she had been ‘more sensitive
than most wives’ when she claimed that the marriage had broken down3.
Upon appealing to the court of appeal, this decision was upheld, confirming
that Mrs Owens had failed to prove ‘unreasonable behaviour’ on Mr Owens part.
In effect, this decision is notable because it ultimately implies that unless
Mr Owens changes either his position, or that of the law, Mrs Owens has no
choice but to wait until 2020 before she can receive a divorce. Whereby her
only grounds for divorce, will be petitioned under section 1(2)(e). This, of
course, is pending, depending on what the Supreme Court will conclude.
it follows that when Mrs Owens lost her appeal, she lost the autonomy to find
happiness, which raises the question of whether the law should be in control of
our romantic happiness? Are the government exceeding or abusing their powers by
intervening in the lives of citizens, by confining them to a loveless marriage?
– At present, it stands that Mrs Owens is left to feel unhappy, isolated and lonely,
and entirely at the disposal of adversarial divorce laws that have quite
clearly failed to catch up with contemporary reality. The result of Owens v Owens as of now, suggests that
the only way to get a speedily divorce, is to prove fault. So, it should be of
no surprise when couples unfairly disparage each other, sometimes falsely, to
support the profoundly wrong conception that fault must be established between
one of them for the dissolution of their marriage.
On the other hand, the controversial
decision made in favour of Mr Owens reasserts the limits of judges when
applying legislation. Indeed, the Law Commission has acknowledged that there is
very little direction given to judges, even on matters concerning the division
of financial assets or property. This is perhaps why it is argued that judges
must not assume the role Parliament and ignore clear words of statue on the
basis that the consequences may result in injustice for one party. Thus, it is argued
that the judges are not in the position to make adverse changes to the law when
deciding the Mrs Owens (Supreme Court) appeal.