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Ending a marriage in the 21st century, a look beyond no fault divorce

Sophie Crampton, Pupil, Coram Chambers makes the case for reform of the law of divorce















Sophie Crampton
, Pupil, Coram Chambers

In January this year, Jersey launched a social media consultation asking whether their 70 year old divorce laws required change [1]. While our divorce laws are a mere 45 years old, they are arguably just as badly in need of review.

In recent years, much attention has been given to the idea of 'no fault' divorce and organisations such as Resolution have campaigned for its introduction [2]. However, this is not the only aspect of our law that can be considered to be out of date. This is the case not only for divorce law but also for the law in relation to whether a marriage is 'voidable'. This article will consider out of date provisions in both divorce law and voidable marriages, starting with the former.

Divorce
 The only ground on which a party to a marriage can apply for divorce is the ground that the marriage has broken down irretrievably. To rely on this ground, the petitioner must satisfy the court that one or more of the five facts set out in s1(2) of the Matrimonial Causes Act 1973 apply. Aside from the question of no fault divorce, there are two important issues with these facts. The first is in relation to adultery under s1(2)(a) and the second is the requirement for parties to live apart, which is an element of all five facts.

Adultery
Adultery is defined as "sexual intercourse", which through case law been interpreted as penetration of a woman by a man [3]. Consequently, adultery is not available for marriages between same sex couples nor can it be relied on by heterosexual couples where one party has an affair with someone of the same gender. This is outdated and creates inequality between same-sex and heterosexual relationships. This inequality was raised when the Marriages (Same Sex couples) Bill was debated in the House of Commons and the House of Lords. Baroness Butler-Sloss argued for s1(2)(a) of the Matrimonial Causes Act 1973 to be amended to include adultery "or a sexual act with a person of the same sex similar to adultery" [4]. She argued this would create equality and recognise that fidelity is equally important in both same-sex and heterosexual marriages.

However, there was resistance to this amendment and Baroness Butler-Sloss ultimately withdrew it. The primary objection was that it had taken years and extensive case law to provide a comprehensive definition of adultery and it would not be possible to craft a suitable alternative that would encompass both male and female same-sex relationships without many more years of litigation. It was argued that the existing provisions were adequate as adultery is rarely used in that only 18% of divorces (at the time) relied on it [4]. However, this argument ignores the fundamental inequality of allowing this fact to remain available to heterosexual couples whilst it is not available to same-sex couples. While it is possible that a lack of clarity around the definition of "a sexual act….similar to adultery" could cause confusion, this is not a strong argument against the inclusion of this or a similar amendment. A lack of absolute clarity in legislation is not unusual. Much of our legislation is ambiguous and has required interpretation by the courts.

Alternatively, if it is not possible to draft an equivalent provision for same-sex couples (or widen the definition of adultery to include same-sex couples) then, in the interests of equality, the adultery fact should be removed. For our law not to discriminate against same-sex couples, adultery must be available to everyone or no one.

Living Apart
It is a feature of all five divorce facts that parties must live apart. Living apart is a requirement for the 2 and 5 years separation facts as well as the desertion fact. It is also necessary for adultery and unreasonable behaviour as living together for longer than 6 months after the incident in question will bar a petitioner from relying on these facts. Section 2(6) of the Matrimonial Causes Act 1973 clarifies that a husband and wife will be treated as living apart unless they are living with each other in the same household. This has been interpreted by case law to mean that parties who continue to live in the same property must live entirely separate lives [5] [6]. Those who share meals or spend time together with their children have been found to be living in the same household, despite the fact they are clearly no longer in a relationship [7].

The Law Commission's 1990 report, entitled Family Law: The Ground for Divorce, highlighted the artificiality of people attempting to live in separate households and the negative effect this can have on the children of the marriage [8]. For people who cannot afford to live separately, the requirement that they maintain separate households forces people not to be civil to each other, as any sharing of resources could be used as evidence that they are not living apart. This can discourage reconciliation, make mediation more difficult and could foster a hostile atmosphere. In light of increasing property prices and a soaring rental market, particularly in London, this is likely to apply to more and more couples. While this issue is often raised as an argument in favour of no fault divorce, it could also be an argument for expanding the definition of living apart to allow married couples who are no longer together to behave amicably towards each other.

An alternative, proposed by the Law Commission in 1990, is to replace the idea of a fixed period of separation with a period of consideration and reflection on the alternatives to, and practical consequences of, divorce. This option was found to be overwhelmingly favoured amongst charity organisations, legal professionals and lay people. It was felt this option would promote attempts at mediation and reflect the emotional, social and psychological effects of a decision to divorce. This recommendation was included in ss7 - 9 of the Family Law Act 1996 but, following an unsuccessful pilot scheme, this was repealed by s18 of the Children and Families Act 2014 before it was ever brought into force. However, the failure of this particular recommendation does not itself preclude a less restrictive alternative to living apart, as it is currently defined, being introduced in order to assist parties in working together to either reconcile or reach an agreement on the ending of their marriage.

Grounds on which a marriage is voidable
The grounds on which a marriage is voidable are contained in s12 of the Matrimonial Causes Act 1973 and apply to a marriage celebrated after 31st July 1971. This section, while not automatically nullifying a marriage, nevertheless allows the parties to treat the marriage as not having occurred.
Marriages are treated as having existed up until the date the marriage is voided so ancillary relief provisions still apply to these marriages. However, the one year bar that applies to divorce does not. This section provides an important alternative method of ending a marriage, particularly among those whose religious beliefs prevent them from getting a divorce. However, many of these grounds are, or have the potential to be, problematic in modern society.

 A full consideration of all eight grounds is beyond the scope of this article, particularly as the grounds introduced by the Gender Recognition Act 2004 have yet to be thoroughly tested. This article will therefore focus on three grounds, namely, the grounds under s12(1)(a), (1)(b) and (1)(f).

Section 12(1)(a) and (1)(b) of the Matrimonial Causes Act 1973
These grounds state that a marriage is voidable on the basis that the marriage has not been consummated either due to the incapacity of either party (s12(1)(a)) or the wilful refusal of the respondent (s12(1)(b)). These grounds are out of date for two reasons. First, sex and marriage are no longer as entwined as they once were and, in addition, there has been increasing recognition of asexuality worldwide. Therefore, it is questionable whether it is still appropriate to end a marriage on the basis that it was not consummated. Second, even if it is accepted that such grounds are still required, then the law needs to address the fact that these grounds, as made clear by s12(2), do not apply to marriages between same sex couples.
Consummation has been defined by case law as consisting of erectio and intromission, in other words penetration of a woman by a man [9] as with adultery discussed above. This inequality was raised as part of Baroness Butler-Sloss's argument in relation to adultery and was rejected for much the same reason, namely that the difficulty in producing an alternative definition of consummation would result in uncertainty [10]. Again, this does not sufficiently address the issue of inequality. These grounds should either be available to all or to none.

Section 12(1)(f) of the Matrimonial Causes Act 1973
A marriage is voidable under this ground if, at the time of the marriage, the respondent was pregnant by some person other than the petitioner and the petitioner did not know this was the case. There are a number of problems with this ground. First and foremost, it is discriminatory, as the respondent must, by virtue of this ground, be female. There is no equivalent provision for a petitioner, male or female, who discovers that their spouse has had a child with someone else, prior to or at the time of the marriage. The rationale for this may well have been that a petitioner in this instance would be using his or her resources to raise another person's child. However, this argument falls away when we start to consider the question of child maintenance. It is worth noting that under s23 of the Matrimonial Causes Act 1973, the court has the power to order a party to marriage to make periodical payments towards a 'child of the family', which does not have to be the biological child of both parties. In fact, s25(4) deals specifically with matters the court must consider when the child is not the biological child of one party. 

A further problem with this ground is the question of parental responsibility. While the gender of the petitioner is not specified, and indeed this ground is also available for civil partnerships, parental responsibility is most likely to be an issue when this ground is relied on by the husband petitioner against the respondent wife. In this situation, there is a question of what happens to the husband's parental responsibility for a child if the child is found out not to be his and he relies on this to void his marriage. There is no case law on the effect of this ground on parental responsibility as the last reported case relying on this was Sullivan v Sullivan [1970] 1 WLR 1008 and parental responsibility was not created as a concept until the Children Act 1989.

Case law in relation to paternity testing does not assist with this issue either as the majority of these cases involve the purported biological father seeking a declaration of parental responsibility and, under s2(6) of the Children Act 1989, someone acquiring parental responsibility does not cause another person's parental responsibility to cease.

Section 2(1) of the Children Act 1989 refers to parental responsibility where 'a child's mother and father were married to each other at the time of the birth' but unhelpfully does not specify whether this solely relates to the biological father or not. If the husband has already registered himself as the father on the child's birth certificate this would clearly give him parental responsibility under s4(1)(a). However, the question then arises as to whether a husband who has voided his marriage on the ground that the respondent's child is not his can then exercise parental responsibility for that child by virtue of a birth certificate, which given the circumstances, must be inaccurate.

Conclusion
This article has touched on a few of the out of date areas in relation to the divorce 'facts' and the grounds on which a marriage is voidable. While amendments have been made to the Matrimonial Causes Act 1973 over the years, there has been a tendency to add provisions rather than considering whether existing provisions should be amended or removed. The areas highlighted in this article, along with the issue of no fault divorce, stress that there is a need for our current law to be fully reviewed and updated by Parliament to ensure that it reflects modern society.


[1]  "Jersey looks to reform its divorce laws," 26 January 2018. [Online]. Available: http://www.familylawweek.co.uk/site.aspx?i=ed187595.

[2]  Resolution, "Allow people to divorce without blame," [Online]. Available: http://www.resolution.org.uk/editorial.asp?page_id=984&displayMode=preview.

[3]  Sapsford v Sapsford and Furtado [1954] 2 All ER 373.

[4]  Hansard, "Marriage (Same Sex Couples) Bill — Report (1st Day) (Continued)," 8th of July 2013.

[5]  Walker v Walker [1952] 2 All ER 138.

[6]  Smith v Smith [1939] 4 All ER 533.

[7]  Mouncer v Mouncer [1972] 1 All ER 289.

[8]  L. Commission, "Family Law: The Ground for Divorce," 1990.

[9]  R v R (otherwise F) [1952] 1 All ER 1194.

[10]  Hansard, "Marriage (Same Sex Couples) Bill — Committee (2nd Day) (Continued)," 19th of June 2013.