Further to my last article, see here, on the subject of divorce reform and the Tini Owens case, Mrs Owens has been granted permission to appeal to the Supreme Court. A date has not yet been set for the hearing of the Appeal.
Tini Owens’ barrister, Philip Marshall QC, is expected to argue that the Matrimonial Causes Act 1973 presents a “linguistic trap” by ostensibly requiring unreasonable behaviour on the part of the Respondent when all that is actually required is that the Applicant cannot reasonably be expected to live with the Respondent.
Many Family Law Practitioners are hoping that the Supreme Court accepts this argument, see here for an article in the Solicitor’s Journal.
Section 1(2)(b) of the Matrimonial Causes Act 1973 states that:
“that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”
Section 1(2) provides that the Court shall not conclude that a marriage has broken down irretrievably unless one or more of the following grounds have been satisfied, one of which is 1(2)(b) above. It is submitted that the proper interpretation of section 1(2)(b), is that some kind of objective fault must be found with respect to the Respondent’s behaviour. To hold otherwise would render grounds (d) and (e) otiose which allow for no fault divorce where there has been a period of separation of 2 years (and the Respondent consents to the divorce) or 5 years without the Respondent’s consent.
Furthermore this interpretation is supported by the background to the Matrimonial Causes Act 1973 and the Divorce Reform Act 1969, whereby grounds (d) and (e) were presented as a compromise between reformists and traditionalists.
Whilst one cannot pre-judge the reasoning of a prospective decision, it would seem that if the Appeal is upheld on the basis of Mr Marshall’s argument, this will amount to judicial activism in an area that should be left to Parliament, who so far have consciously chosen not to implement further reforms despite the issue being raised on a number of occasions.