Susan Clark Solicitor

You may have seen in the widely reported press the case of Mr and Mrs Owens where a wife was refused a divorce on the grounds of her husband’s unreasonable behaviour. The case law is embodied within section 1(2)(b) of the Matrimonial Causes Act 1973. This states “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 the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent… it shall be the duty of the court to enquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent”.

For a long time (encouraged by Resolution the family law organisation) lawyers have endeavoured to keep the particulars set out in an unreasonable behaviour petition to a minimum. This is to reduce potential acrimony which can overflow into disputes regarding children and the division of the assets. However, this case may mean that in the future much more robust and possibly controversial particulars will have to be included in petitions. The outcome of this case may have been correct if the law was strictly applied, but the law needs to change and there is now a substantial lobby to press on for no fault divorce. It is very much to be hoped that local judges will not pay much heed to the decision of the Court of Appeal, given that they have been fairly lenient in the fact that they have passed as suitable for the pronouncement of a decree nisi.

You may also have seen in the paper a report in relation to this case, where a heterosexual couple challenged the reasons why they could not enter into a civil partnership. Same sex couples have the choice of entering into either a civil partnership or into marriage.

The reason they wanted to challenge this is that they wish to formalize their relationship but they had deep routed and genuine ideological objections to marriage based on what they considered to be its historically patriarchal nature. They considered that the status of civil partnership would project their values and give due recognition to the equal nature of their relationship. However, their request to be allowed to enter into a civil partnership was dismissed by the Court of Appeal. This was because of the wish of the Secretary of State to have further time to undertake a proper assessment of the best way forward. However, all of the judges were critical of the status quo. They all agreed that the couple were being treated differently because of their sexual orientation and this impacted on their private and family life. Therefore, hopefully the Secretary of State will reconsider her position, but I understand that an appeal to the Supreme Court is already being prepared. The Secretary of State’s current policy is that she will not propose any change to the Civil Partnerships Act 2004 until she has statistical data about whether the number of same sex couples choosing or remaining in civil partnership rises and falls, following the introduction of same sex marriage.

It is believed that Brexit is going to have a huge effect on family law, especially for those families whose parents are of different EU nationalities. There will also be implications for the British ex-pat community living in the EU unless agreements are reached to protect them.

At the moment, a divorce granted in England (and Wales) is automatically recognised elsewhere in the EU (except Denmark). There is currently an EU divorce regulation known as Brussels IIa and if it no longer applies the English court will have to decide whether it or a competing EU jurisdiction is the place where the divorce should take place. This could lead to very expensive and complex litigation and also cases where there are conflicting decisions. There could also be issues with the automatic enforcements of children orders and maintenance orders made by the UK courts.