Matrimonial Causes Act 1857 (MCR 1857) and Owens v Owens [2018] UKSC 41





The first law which governs divorce was the Matrimonial Causes Act 1857 (MCR 1857). After the inclusion of the Matrimonial Causes Act of 1857, the law was changed, and many amendments were done to the law. The change includes in the Matrimonial Causes Act 1923 which allows spouses should be seen as equal. In 1969 Divorce Reform Act 1969 was introduced. In 1969 a divorce petition could only be filed if the party to the court claimed that their spouse was at blame in some way for the breakup of their marriage owing to infidelity, cruelty, desertion, or insanity which is incurable. All the divorce laws were consolidated with the Matrimonial Causes Act 1973 (MCA 1973) after the introduction of the Divorce Reform Act 1969 (DRA 1969).

 Matrimonial Causes Act 1973 (MCA 1973) is the law within England and Wales that governs divorce. “To combine certain enactment relating to martial proceedings, maintenance agreements and declaration of legitimacy, the validity of the marriage, and British nationality,” the Matrimonial Act 1973 was enacted.[1] Matrimonial Causes Act 1973 was made for reform throughout the 1950s and 1960s in which the basis of law for divorce was formed. Divorce law now specifies that divorce cannot be granted until the couple is married for an entire year means that if the parties want to divorce in England and Wales, the parties must have been married for at least one year. Grounds for petitioning divorce are defined within the Matrimonial Causes Act 1973 (MCA 1973) and the ground for petitioning divorce under this is ‘that the marriage has irretrievably broken down.[2] Irretrievable breakdown is the only ground for divorce and this ground can be proven if one of the factors exists in these five factors which are covered within the   Matrimonial  Causes Act 1973 which are, (a) Adultery that the spouse committed adultery and found it intolerable to live with them,[3] (b) Behaviour of the other spouse in which that petitioner cannot reasonably expect to live with their spouse, (c) Desertion by another spouse,(d) At least two years' separation with the consent of the parties and where both spouses agree on to apply for a divorce, (e) At least five years[4] separation for the parties without consent and there is no agreement to divorce.

So, if a person wants to apply for divorce that person must apply to section 1 of the Matrimonial Causes Act 1973.

In the above factors three of the five factors amounted to a ground for divorce are fault-based but the scope of the Matrimonial Causes Act 1973 (MCA 1973) has broadened to issue divorce petitions which include no-fault facts based on separation.

In the Owens v Owens case, the parties married in 1978 and at the time of the decision Mr and Mrs Owens were 80 and 68 years old respectively, and they had two adult children.[5] A draft petition was sent by the wife to her husband in December 2012, but she did not pursue it. In February 2015 they separated, and she filed a petition which commenced these proceedings in May 2015.[6] The only ground for the divorce is that the marriage has broken down irretrievably and to prove this ground one of the five-factor is required in it. So, Mrs Owens cited the fact of unreasonable behaviour. That Mr Owens behaved in such a way that she could not reasonably be expected to live with him.[7]

The wife’s petition includes four complaints. In the third complaint, nine incidents were specified by the wife and in the fourth complaint, eighteen incidents were specified.[8] Honour Judge Tolson QC at trial focused on the top-ranking twenty-seven allegations, specifically the incidents of embarrassing the wife in front of others.[9] It was found by Judge Tolson that the marriage had broken down,[10] but he refused to grant decree nisi to the wife on the basis that she had not proven s1(2)(b) Matrimonial Causes Act 1973  the behaviour of Mr Owens. So, not providing Mr Owen’s behaviour examples led to the refusal to grant the divorce.



Mrs Owens filed an appeal, but the court of appeals return to the statute’s question:

Has a respondent acted in such a way that the petitioner cannot fairly be expected to remain with the respondent?

The Court of Appeal was satisfied with the decision of Judge Tolson and that he had applied the law correctly at the first instant. Judge Tolson determined that Mrs Owens was more sensitive than other wives but concluded that “it makes no difference.” Judge Tolson relied on the fact that the occurrence about which Mrs Owens complained was isolated. Therefore, the court of appeals gives little analysis to this ground of appeal.

Mrs Owens took her case to the Court of Appeal. She filed an appeal on two grounds:

a.    Failure to follow current legislation.

b.    Articles 8 and 12 of the European Convention on Human Rights were also violated.[11]

But it was ruled that the court could not interfere in the lower court’s decision to refuse the decision nisi, even if the judge has correctly found that the marriage had broken down. So, the Court of Appeal dismissed Mrs Owens’ appeal.

On appeal,[12] Mrs Owens advanced several arguments. It was also argued by Mrs Owens that it is not the respondent’s behaviour that needs to be objectively unreasonable and that the law is misleading about unreasonable behaviour and needs to be proved.[13] Is it reasonable to expect the petitioner to live with the person who has behaved in such a way? It is argued by Mr Owens that behaviour is something which will be considered by herself to live with him, and it is not the court to decide whether Mr Owen’s behaviour was blameworthy or not.

The behaviour of Mr Owens was found by the judges at the trial that it is a minor alteration that is normally expected in a marriage. So, therefore, the court interpreted the law in such a way that before the petitioner is entitled to divorce the respondent’s behaviour must meet certain circumstances.

The barrister of Mrs Owens also argued that in Matrimonial Causes Act 1973, if one of the five factors is present if the marriage is irretrievably breaking down the court, is allowed to ensure that.

Mr Owens also argues that the status quo should be maintained by the Supreme court. The barrister of Mr Owens argues that it must be the respondent whose behaviour meets a certain level of unreasonableness and if to view the law which is suggested by Mrs Owens then in objective test subjective elements would be added. As such the Supreme court would then make the law rather than interpret it and it is the role of Parliament to make law.

The petition was defended by Mr Owens by stating that the example is not sufficiently serious to satisfy the test for unreasonable behaviour which is given by Mrs Owens and to rely on this fact the particulars of the behaviour must be serious enough in all the cases and his behaviour is not unreasonable in the context of this marriage

So, the court at first instance was in favour of Mr Owens, stating that the behaviour which is described by Mrs Owens is a kind to be expected in marriage.[14] When the matter reached the Supreme Court, they accepted that their job is only to apply legislation that is laid down in parliament and they also found that there is no such behaviour in which Mrs Owens could not reasonably be expected to live with Mr Owens. So, because of this, it could not be said that the marriage has an irretrievable breakdown and Mrs Owens’ petition was dismissed. In unreasonable behaviour, there is two years separation with consent fact, but Mrs Owens cannot rely on this fact because Mr Owens does not consent to divorce. The only option left with Mrs Owens was to wait for 5 years of separation in which she will no longer require the consent of Mr Owen to divorce.

The difficulties which were experienced by Mrs Owens while obtaining her divorce have called for a new system of no-fault divorce. A resolution for this was called for such a system, and it was supported by the Marriage Foundation, the President of the Family division and Lady Hale.

The Divorce, Dissolution and Separation Bill 2019-2021 was introduced to parliament by the Conservative Government.[15] This bill was a response to the Supreme Court case of Owens (Appellant) v Owens (Respondent)[16] which stated in its conclusion that Parliament may wish to consider replacing the current divorce law.[17]

A Bill was introduced on 12th June 2019, which finally received Royal assent and become an Act of Parliament on 25 June 2020 and was passed as the Divorce, Dissolution and Separation Act 2020.[18] This Act shall only apply to England and Wales.[19] Under the new Act, the ground of irretrievable breakdown for divorce continues but the process is different.

The steps are:

·         Either one party or both parties can apply.[20]

·         If the marriage has irretrievably broken down, a statement of this must be included with the application. There is no need for an explanation or proof of marital disintegration in this case.

·         The court must accept the statement of marriage breakdown as conclusive and make a divorce order based on it.

·         The divorce order is conditional before becoming final, with the following timing:

a.    The party or the parties must confirm that they want to pursue the application further. The court will issue a conditional order based on the confirmation, which was previously decree nisi.

b.    Six weeks following the conditional order, a final order is issued, historically known as the decree absolute.

·         The language has been updated.

This legislation has made various improvements to divorce law in England and Wales, and the challenges that Mrs Owens faced will not be faced by others in the future, and the new law will bring several good changes. Which are:

·         This allows the party to simply tell the court that the marriage has broken down, and if both parties affirm that the marriage has broken down, they will not need to separate for 2 or 5 years.

·         The divorce procedure will be considerably more straightforward, particularly in terms of the behaviour petition for the person acting in the couple, and couples will focus on more significant issues such as who will raise their children and finances rather than other concerns.

·         There will be less friction between the spouses from the outside, making them more willing to engage in collaborative mediation.

·         Couples who voluntarily agree to divorce will no longer have to wait two years.

So, in the case of Owens v Owens, the decision of the Supreme court was valid because the wife to demonstrate that their marriage has been broken down, relied on the unreasonable behaviour of Mr Owens. It was also said by Mrs Owens that she could not be reasonably expected to live[21] with him anymore, but the petition was defended by Mr Owens that his behaviour was not unreasonable in the context of their marriage. It was said by the Judge in the first instance that the allegation which is made by Mrs Owen is exaggerated in context and these were the kind which is expected in a marriage. Mrs Owens appealed the decision, but the Court of appeal returns to the question: “has the respondent behaved in such a way that the petitioner could not reasonably expect to live with the respondent”

Mrs Owens’s appeal was then dismissed but the court was satisfied that the Judge has applied the law correctly. The decision was appealed again by Mrs Owens in July 2018, the Judges of the Supreme court agreed that the decision of this case left them uneasy. They recognised that they cannot change the law and their role is to interpret and apply the law which is handed to them, and the law currently says that the petitioner is required to find a fault in the respondent,[22] on this occasion Mrs Owens failed to prove the unreasonable behaviour of Mr Owens. The effect of this decision was that Mrs Owens will now wait for 5 years until the year 2020 when she will be able to petition for divorce without the consent of Mrs Owens. After the decision of the Owens v Owens case, a new system of no-fault was introduced because the difficulties which were experienced by Mrs Owens shall not be suffered by anyone in the future and it was an incredibly good decision to make a new system of no-fault. Finally, the Conservative Government presents the Divorce, Dissolution and Separation Bill 2019-2021 introduced to parliament. This Bill was introduced on 12th June 2019, which finally become an Act of Parliament on 25 June 2020 and was passed as the Divorce, Dissolution and Separation Act 2020. Under the new Act, the process is different but the ground of “irretrievable breakdown” continues.

CONCLUSION

 To conclude, the decision of the Supreme Court in Owens v Owens was valid and relevant because they can only interpret or apply the law and the law currently stands that the petitioner is required to find a fault in the respondent, in this occasion Mrs Owens failed to prove the unreasonable behaviour of Mr Owens but Mrs Owens failed to prove as a result the appeal was dismissed by the Court of appeal and the Court of appeal was also at first instance satisfied with the decision of the Honour Judge Tolson QC  that he had applied the law accordingly and the decision which is given by the Judge is according to the current law. These changes which are introduced in the Divorce, Dissolution and Separation Act 2020 will provide positive changes in the future and in future, no other spouse will face the kind of difficulties and issues which was faced and experienced by Mrs Owens that if the spouse did want a divorce and did not want to live with the other spouse so that spouse shall not reasonably be expected to live with him.[23] The system will also allow one of the parties to simply notify the court that the marriage has broken down and if both parties confirm that the marriage has broken down and they will not need any 2 or 5 years of separation for that. There is no need for evidence or explanation that the marriage has been broken down a statement of this will be only attached with the application that the marriage has been broken down. This system will also reduce the conflict between spouses, and they can reach an amicable agreement regarding the children’s agreement. So, this is an incredibly good system, and it will make various good changes in society.

 

 

 

 

 

 

Table of Authorities

Cases

Owens v Owens [2018] UKSC 41

Statutes and Statutory Instruments

Divorce Reform Act 1969

Divorce, Dissolution and Separation Act 2020

Divorce, Dissolution and Separation Bill

Matrimonial Causes Act 1857

Matrimonial Causes Act 1923

Matrimonial Causes Act 1973

Bibliography

All Answers ltd, 'Matrimonial Causes Act 1973' (Lawteacher.net, April 2022) <https://www.lawteacher.net/acts/matrimonial-causes-act.php?vref=1> accessed 5 April 2022

Gilchrist Tom, ‘Your fault, my fault, no-fault English fault-based divorce current proposals and the alternative New Zealand model, (king’slawstudentlawreview. net,1 July 2019) <https://blogs.kcl.ac.uk/kslr/2019/07/01/your-fault-my-fault-our-fault-no-fault-english-fault-based-divorce-current-proposals-and-the-alternative-new-zealand-model/> accessed 10 April 2022

Hawes Alison and Paatz Molly, ‘Unhappy Marriage not grounds for divorce: a call for Reform’ (Burges Salmon. 03 April 2017) < https://www.burges-salmon.com/news-and-insight/legal-updates/unhappy-marriage-not-grounds-for-divorce-a-call-for-reform> accessed 15 April 2022

Finnegan Michael, ‘The Divorce, Dissolution and Separation Act 2020: Reform and its implication’ (Burges Salmon. 15 May 2020) < https://www.burges-salmon.com/news-and-insight/legal-updates/private-client/the-divorce-dissolution-and-separation-bill-reform-and-its-implications> accessed 15 April 2022

Huston Jannie, ‘What happened in the case of Owens v Owens? (Harrison Drury Solicitors) < https://www.harrison-drury.com/divorce/what-happened-in-the-case-of-owens-v-owens/> accessed 15 April 2022

Wilson Brett, ‘No-fault divorce legislation passed,’ (Brett Wilson LLP.17.07.20)                    <https://www.brettwilson.co.uk/blog/no-fault-divorce-legislation-passed/> accessed 15 April 2022

 


[1] Matrimonial Causes Act 1973 (MCA 1973).

[2] MCA 1973, s 1(1).

[3] MCA 1973, a 1(2)(a).

[4] MCA 1973, s 1(2)(e).

[5] Owens v Owens [2017] EWCA Civ 182.

[6] Owens (n.3) para. 4.

[7] Tom Glichrist, ‘Your fault, my fault, no-fault? English fault-based divorce current proposals and the alternative New Zealand model,’ (king’slawstudentlawreview.net,1 July 2019) <https://blogs.kcl.ac.uk/kslr/2019/07/01/your-fault-my-fault-our-fault-no-fault-english-fault-based-divorce-current-proposals-and-the-alternative-new-zealand-model/> accessed 10 April 2022.

[8] Owens (n.3) para.6.

[9] Owens (n.3) para.20.

[10] Owens (n.3) para.1.

[11] Owens (n.3) para. 54-55.

[12] Owens v Owens (n.3) [2017] 4 WLR 74, [2017] 2 FCR 562, [2018] 1 FLR 1002, [2017] WLR(D) 217.

[14] Finnegan Michael, ‘The Divorce, Dissolution and Separation Act 2020: Reform and its implication’ (Burges Salmon. 15 May 2020) < https://www.burges-salmon.com/news-and-insight/legal-updates/private-client/the-divorce-dissolution-and-separation-bill-reform-and-its-implications> accessed 15 April 2022.

[15] Divorce, Dissolution and Separation HL Bill (2019-21) c.11.

[16] Owens (n. 7).

[17]  Owens v Owens [2018] UKSC 41 para forty-five.

[18]  Divorce, Dissolution and Separation Act 2020 (DDSA 2020).

[19]  DDSA 2020.

[20] Brett Wilson, ‘No-fault divorce legislation passed,’ (Brett Wilson LLP.17.07.20)                    <https://www.brettwilson.co.uk/blog/no-fault-divorce-legislation-passed/> accessed 15 April 2022. 

[21] MCA 1973, s 1(2)(b).

[22] Owens (n 6).

[23] MCA 1973 (n. 20)