The FCA – Transformation to Assertive Supervision
Family lawyers currently aim to minimise the animosity caused by English fault-based divorce law by agreeing the wording of “unreasonable behaviour” petitions with the other party before they are filed at court. We want to reduce conflict and give our clients the best possible chance of reaching amicable agreements about their children and finances.
In the now infamous case of Owens v Owens (in which Mrs Owens’ appeal against the refusal to grant her a divorce was dismissed), the President of the Family Division, Sir James Munby, described current practices as “consensual, collusive, manipulation” of the law. However, he made it clear that he did not intend “the slightest criticism of the lawyers engaged in this sensitive and difficult work.”
Nearly a century ago, family lawyers had to go to more extreme lengths to “manipulate” the law for couples who agreed their marriage was over, although back then such “collusion” was strictly prohibited.
Before the Matrimonial Causes Act 1937, divorce required proof of adultery or violence by one party; it could not be done by mutual consent (and even now this is only possible after two years’ separation).
At the time, one creative solution was to stage an adulterous liaison in what became known as a “hotel divorce”. The husband would arrange a “dirty weekend” by the seaside with an uninvolved woman, promenade around with her in public, then ensure the chambermaid brought them breakfast in bed the next morning. The maid could later be called on to give evidence as a witness. Some couples hired private investigators to catch the “couple” in compromising situations. This charade relied on the legal test that adultery could be inferred if there was both “inclination” and “opportunity”. This was highly illegal and required the couple (and any paid extras) to commit perjury, risking criminal prosecution. The practice was immortalised by AP Herbert in his novel “Holy Deadlock”.
These days the risks are not so extreme. If an agreed petition is rejected, it can be amended and “beefed up”. However, if the petition is not agreed and one party defends it (as Mr Owens did), the other party is left with a five year wait for a divorce. Better than a lifetime perhaps, but frankly ridiculous in today’s society; Mrs Owens has been left locked in a broken marriage and unable to move on with her life.
Mrs Owen’s legal team tried to argue that the decision to refuse her divorce was a breach of her human rights, but this was rejected by the Court of Appeal. Mrs Owens has a right to marry, a right to found a family and to respect for her family life, but not a right to divorce.
This is not a failure of the Judges, who faithfully applied the law, but a failure of multiple governments to reform outdated laws, a failure to prioritise families over more palatable, vote-winning policies. No fault divorce was ready to be enacted in the Family Law Act 1996, but it was never brought into force and eventually repealed. Family lawyers are now renewing their calls for an end to the blame game and we hope Brexit may finally present an opportunity for this cause to be heard.
Until then, divorce petitions still need to be drafted with sufficient venom to ensure that the Judge or Legal Adviser reviewing them is satisfied that one party has behaved in such a way that the other party cannot reasonably be expected to live with them.
As Sir James Munby made clear, this must be judged by today’s standards: not by “the man or woman on the Routemaster clutching their paper bus ticket in 1969…but by the man or woman on the Boris Bus with their Oyster Card in 2017”.
Here’s hoping that the man or woman on the hover bus in the not too distant future doesn’t have to get involved at all.
You may be interested in reading our previous blogs on the subject of ‘no fault divorce’ below.
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