Are English marriage laws compliant with the EHCR? — David Burrows
17 December 2018
David Burrows is a solicitor advocate, trainer and writer.
Human rights and English marriage
On 10 December 2018 responses were due to the government’s divorce reform proposals, Reducing family conflict Reform of the legal requirements for divorce (September 2018). A reply to responses is due from the Government, says the Ministry of Justice, by 8 March 2019.
My response to the proposals – as I saw things then – is on my blog here. Thoughts of divorce reform throw up two important human rights issues: one a direct Article 6 question; and the other – which it is surely time for law reformers and the government to confront? – is a discrimination point (Art 14).
But first a little history. The then Labour government, on Leo Abse MP’s private member’s bill, passed with (more or less) approval of the Church of England, the Divorce Reform Act 1969 (in force from 1 January 1971). It was consolidated into Matrimonial Causes Act 1973 (MCA 1973) which represents the modern law and the modern statutory underpinning for financial distribution on divorce or nullity. Mirror provisions apply for same gender couples: Civil Partnership Act 2004. Wholly different finance rules apply for unmarried cohabitants.
The Matrimonial Causes Act 1973 (MCA) section 1 is very simple. There is one ground for divorce: irretrievable breakdown of marriage (s 1(1)). To prove that ground a petitioner (P) must prove one or more of five facts: adultery; behaviour making it unreasonable for P to live with the other spouse/partner (R); desertion for two years; living apart for two (with consent); or five years.
Reformers – including from their inception, the group of family law solicitors, now Resolution – have objected to the blame inherent in the first two facts, and the tendency which this may produce to leave a nastier taste, than need be, in the mouth of divorcees.
P files a divorce petition (court claim) to start the divorce process which alleges irretrievable breakdown on one of the facts. If R disagrees R can file an ‘answer’ – a defence. A judge will have to decide – in the tiny proportion (perhaps 0.015%, see para 98 here) of cases where an answer is filed and a divorce contested – whether P has proved irretrievable breakdown.
I believe it was largely because of the way her lawyers conducted her case that Mrs Owens failed to obtain a decree of divorce, not because of the fact of her marriage breakdown or the present law.
Owens v Owens  UKSC 41 – the case law vanguard of the divorce lawyers’ gilets jaunes – was the catalyst for the government’s proposals. It must be recorded here, as a reading of the Supreme Court judgement shows, that Owens is a silly case for a foundation for of law reform because of the way it was allowed to be case managed. It should not be allowed to panic the government into hasty or ill-judged reform.
In parallel with all this is nullity of marriage. MCA 1973 ss 11 and 12 respectively enable the court to find that a marriage is void or voidable. In law, and for the economically weaker spouse/partner, this is critical (as explained later).
If there is a void marriage, it brings her (it will generally be a woman) and her children within the much wider power of the courts under MCA 1973 Pt 2 (see Akhter v Khan & Attorney-General  EWFC 54 (below)).
I hope readers will agree that this is the important message to take from this post in discrimination terms; and for the government to see – however divorce is reformed – that marriage and its inception need to be the essential prior step in a secular society to a Convention-compliant divorce or nullity jurisdiction of the courts.
Divorce and a fair trial
Any question of reform of divorce laws raises three immediate, but separate, questions:
- What is a marriage?
- On what grounds should a marriage be dissolved?
- If there is to be divorce on one spouse’s declaration (as proposed) do any grounds for defence (‘contest’) remain; or should they remain?
The first and third of these raise the human rights points. I will take the third first since it leads into the first which, in its turn, raises the discrimination issue.
The government suggests divorce on irretrievable breakdown, as with the present law (MCA 1973 s 1). But how is that proved? First, says the government, couples may have a joint application. Beyond that, there is no answer in the government’s proposals. This is where the present law is snagged; so I have suggested in my answer, one year living apart would be appropriate. Resolution says six months, from when a person (P) registers their assertion of breakdown.
But supposing, whatever ground or grounds is/are chosen, that the other partner (R) says the marriage has not irretrievably broken down; the couple have not lived apart for the requisite period; or R says the alleged marriage is not a marriage at all (see later)?
The government proposals continue (pp 26 and 34): ‘The Government also proposes to abolish the ability to contest the divorce as a general rule….’. The paper goes on that it is intended ‘to remove the opportunity to contest (“defend”) the divorce because it serves no practical purpose. This has been increasingly a feature of divorce law in comparable jurisdictions.’
That means divorce on demand, if there is no way R can answer and respond to – or ‘contest’ – the petition or the fact of any marriage at all. It would also be against most principles of English law and of fairness generally: namely to hear the other side (audi alterem partem). Article 6 demands that anyone have a fair trial of an issue in civil court proceedings; but will divorce in any way be a justiciable issue under the government plan? To most people it is a simple issue of natural justice. It is not to urge that happened in Owens on anyone, just fairness.
What is marriage?
A condition precedent to divorce is a marriage; or to nullity a void or voidable marriage. Marriage formalities may enable a couple to claim they have a marriage (i.e. can get divorced); that they have a void or voidable marriage; or that they have a non-marriage. Divorce and nullity enable the economically weaker partner to claim provision, for herself (it will be mostly women) and her children, from the other under divorce laws (MCA 1973 (MCA 1973) Pt 2); whereas with a ‘non-marriage’ she is stuck.
It goes further. Siobhan McLaughlin (Re McLaughlin (Northern Ireland)  UKSC 48,  1 WLR 4250) broke the discrimination bonds of widow’s benefit. So too did Mrs Bath (Chief Adjudication Officer v Bath  1 FLR 8) after a Sikh marriage. Others – as Marriage Act 1949 law now stands – may still not be so fortunate in the immigration and benefits field.
But if you think you have gone through a marriage which you, your partner and any later children regard as a marriage, who is to say you are not married? Since the valid marriage question mostly will catch women, and as it nearly caught the wives in AM v SS  EWHC 4380 (Fam), Moylan J and Akhter v Khan & Attorney-General  EWFC 54, and others who do not have a MA 1949 conventional marriage, it may be said to engage Article 14. Let’s look further at that.
Marriage Act 1949: Convention compliant?
If your marriage is not celebrated according to formally recognised English rules – based, perhaps on C of E, Jewish, Quaker (incorporated by a 1753 statute) and now civil norms – then mostly your practices will be racially different from ‘conventional’ English customs. If English law differentiates you from the mainstream of English marriage laws as a result, is that not discrimination?
If it is discrimination and A suffers loss as a result of English marriage laws, then as with Siobahn Mclaughlin and Northern Irish legislation, there is a question-mark over English marriage laws. Are those laws fair to the extent that they discriminate against those who thought they are married according to their own customs but then cannot apply for finance under MCA 1973 Pt 2, cannot obtain state benefits as a spouse or loose insurance entitlement?
In the heterodox community of 21st century a question prior to divorce arises: what is marriage? This depends on a statute twenty years older than divorce legislation; that is on Marriage Act 1949. And that Act was already old – it is a consolidated statute – in 1949. It is based on ecclesiastical law (ie mostly Church of England Christian rules). If English marriage laws are not Convention-compliant, it needs to be confronted; and with divorce reform on the modern law agenda, reform of the Marriage Act 1949 may now be appropriate. Otherwise, should a compatibility claim perhaps be mounted?