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“Behaviour” Petitions on Divorce and Intellectual Dishonesty : have you played a good enough game of charades?

Matthew Richardson, barrister, Coram Chambers considers the current state of the law in relation to divorce petitions based on “behaviour” and offers an alternative approach which he argues is more compatible with 21st century life and rights.

Matthew Richardson
, family barrister, Coram Chambers

The recent leading judgment of the President of the Family Division sitting in the Court of Appeal in the case of Owens v Owens [2017] EWCA Civ 182 has added further fuel to what was already a bright fire; the UK's divorce law just isn't credible and is causing people harm. Here I take a slightly different look at what we might do now, suggest a template for all future "behaviour" petitions, and examine what the future could look like.

Some starting premises:

The collective voice of the legal profession is now so loud on some of the fundamental matters at hand that they hardly need repeating here:

Premise (1): Fault-based divorce is a horrible idea and one that should no longer be enshrined in UK law.

In case you're catching up on the conversation, some handy links are on the Resolution website here and here and the Family Law Week website here.

Drawing briefly from the third link above, for example, which is from Professor Liz Trinder at the University of Exeter, who has published interim findings from their "Finding Fault?" research:

• 'Divorce petitions are not necessarily accurate records of who or what caused the breakdown of the marriage. Petitions can be based on compromise statements (a 'fudge') designed to minimise conflict and upset, or can be just one person's view of what went wrong with the marriage.

• 'In reality, there is already divorce by consent or 'on demand', but masked by an often painful and sometimes destructive legal ritual.'

Premise (2): A better way (hashtag!) is needed, one that means archaic notions of blame (whose historic roots were addressed recently in a very interesting talk by Lord Wilson given at the University of Bristol) are left behind and replaced with a straightforward system whereby marriages can be brought to an end if one or both parties assert and maintain that the relationship is irretrievably broken down.

Premise (3): The current state of the law insofar as it is relevant to this discussion:

It is assumed that most readers will be familiar with the wider context of the law relevant to these cases. Suffice to say that I am here considering the circumstances relevant to a majority of current divorce petitions, namely that someone has to proceed with their attempt to secure a divorce via section 1(2)(b) of the Matrimonial Causes Act 1973:

1…A petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

(2)  The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say—

(b)  that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

So what should we be doing now when we assist clients to petition using s.1(2)(b)?

(It may be worth noting at this point that there is formal guidance on this subject from The Law Society which might be a more sensible starting point for practitioners who have actual clients to deal with and aren't just writing a somewhat facetious blog about it (The Law Society's Family Law Protocol can be found here)

The President, in his judgment in Owens at paragraphs 94 and 95, says:

[94] The simple fact, to speak plainly, is that in this respect the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty… We have…divorce by consent… by means of a consensual, collusive, manipulation of section 1(2)(b)… that collusion… is now the very foundation of countless petitions and decrees.

[95] The hypocrisy and lack of intellectual honesty… differs only in magnitude from [that] which characterised the 'divorce hotel' under the old law… centred on a charade played out in front of the… inquiry agent who then gave evidence of events which would enable a judge, who either was or affected to be credulous, to find that adultery had been committed…

[95] Too often the modern divorce petition is little more than a charade… [which] 'works' because of the operation of the rule of pleading… that if a claim is conceded it goes through in effect by default.

If those involved in this process – clients, lawyers and judges – are colluding to manipulate the process in a hypocritical and intellectually dishonest way, then surely the question is why there are any petitions (such as in Owens, for example) that are rejected? Evidently the court applies some sort of test, fully aware it is a part of the collusive process, about whether what is pleaded is credible enough to 'pass', but it is hard to see the justification for this. The 'horse' that is the intention behind the 1973 Act has long since bolted, so why should the stable door be closed for some and not others?

Once one is on this hypocritical and intellectually dishonest path, why are we then dealing in matters of degree? Why do judges feel a need to engage in the sort of artificial display of credulity that results in some petitions being found not to satisfy the statutory test when others are? It's as if the message is you can play the game, effect the charade, but just so long as it's not too obvious. There's intellectually dishonest, and then there's too intellectually dishonest.

This is my issue with the decisions at first instance and in the Court of Appeal. The present operation of the system is built on this artifice, but when it's brought into open view – perhaps by an unusually fastidious, or maybe even just bored, judge – the court quickly whips its hands out of the mix and decries the inadequacy of the pleadings, and the fact that their hands, rather than being busy rubber-stamping uncontested and anodyne particulars, are tied by the 1973 Act.

So long as we are manipulating the system to achieve a divorce where there aren't serious conduct issues but one or both parties are firmly of the view that the marriage is at an end, why don't we just fully embrace the intellectual dishonesty and artifice of the process, and take the pleadings to their logical extreme? Why is one sort of falsity acceptable but another not? To that end, why not set out a petition as follows:

What should be a cast-iron template for the particulars:

a. 'The marriage between the parties has broken down irretrievably;
b. The petitioner has informed the respondent that in their view, (a) above is the case;
c. The respondent has informed the petitioner that they [do / do not] agree with this view;
d. Given the respondent's behaviour as set out at (c) above, the petitioner cannot reasonably be expected to continue to live with the respondent.'

Why is this not good enough? It ticks all the boxes when it comes to technically engaging with the statute, and arguably, it's substantially less dishonest than much of what is put before the courts.

Whilst most or all judges might not let this past, and whilst in reality, my complaint lies with the statute not the judges (who have been placed in an invidious position) there is a serious point to be found here: once one party to marriage feels that the relationship is over and cannot be retrieved, how can our legal system countenance, let alone require, that person to remain married to their spouse, when they no longer wish to do so?

We live in a society with enshrined freedoms, including freedoms of choice, movement and freedom from undue governmental interference with our private and family lives. It is submitted that Mrs Owens, for example, is not able to exercise these freedoms at the moment. The MCA 1973 is fundamentally incompatible with the requirements and reality of 21st century life.

Aside: Other things that were the case in 1973:

• Homosexuality was considered a mental illness in the United States;
• The Vietnam war was still happening;
• Capital punishment was being voted on in Parliament;
• The New York Knicks were good at basketball;
• The first mobile phone call was made;
• The internet didn't exist;
• Homosexual sex was illegal before the age of 21;
• VAT wasn't a thing until April that year;
• Women in Portugal didn't have the same voting rights as men;
• The Equal Pay Act was not yet in force;
• Discrimination on the basis of sex was legally permissible (the Sex Discrimination Act does not arrive until 1975);
• The president of the USA was corrupt.

What should the law actually look like?

A suggested replacement could start with the following:

• One party giving formal notice of the intention to divorce;
• At a set point thereafter (e.g. 6 months) there arises the entitlement to apply for a decree;
• In addition, a system of rules for financial transparency and collaborative decision making after the notice has been served.

There is no good reason why the law continues in its current form. Present and past governments have been made fully aware of this problem and still no change is planned. Our law is causing harm to the people it is supposed to protect, and this is unacceptable.