Human rights and a divorce or civil partnership dissolution statement

28 February 2022 by Guest Contributor

Statement as ‘conclusive evidence’

The European Convention 1950 guarantees the right to a fair trial. Everyone knows that. At article 6.1 the Convention says:

Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…. 

What everyone does not know is what is a ‘civil right’. And in the present context – namely divorce of civil partnership dissolution – do you have a right to query the assertion of your spouse or civil partner that your marriage or civil partnership has irretrievably broken down?

The Divorce, Dissolution and Separation Act 2020 simplifies the divorce and civil partnership dissolution process by changing the law to make irretrievable breakdown – as now – the only ground for divorce or dissolution. But to prove that, there was no longer any need to establish one or more facts: adultery (marriage only), unreasonable behaviour or living apart for varying periods. One, or both, parties can file a statement of irretrievable breakdown. The procedure for this is likely – no commencement date has been confirmed – to be in force from 6 April 2022. All so far so civilised.

The two statutes dealing with divorce and civil partnership dissolution – Matrimonial Causes Act 1973 and Civil Partnership Act 2004 – respectively in ss 1(3) and 44(4) say: 

The court dealing with an application under subsection (1) must—

(a) take the statement to be conclusive evidence that the marriage [civil partnership] has broken down irretrievably…

This is the point at which – perhaps – European Convention 1950 Art 6.1 comes in; for that subsection seems to say that if one of a couple says that their marriage has broken down, that is an end of the matter. The assertion cannot be challenged. You, the party who responds to this application (B), cannot use the courts to dispute what your spouse or partner (A) says. And this is so even if, later on, you both continue with a married or civil partnership life: that is, that A and B are reconciled.

Divorce or dissolution after minimum of 26 weeks

As the law now stands, you will both be divorced or your partnership dissolved at the end of a minimum of 26 weeks. The court must go on to make a final order (formerly decree absolute) with no allowance being made for you in any way to dispute the case the statement of irretrievable breakdown. A’s and B’s marriage or civil partnership can be dissolved without court comment, even though B wishes to challenge the assertion that B’s relationship has irretrievably broken down.

To compound this, the rules which amend Family Procedure Rules 2010 (FPR 2010) distinguish between ‘standard’ and ‘disputed cases’; but then rule-makers have sought – unlawfully given the extent of their power (ie they act ultra vires: outside powers given to them by Parliament – to confine to a narrow band the forms of family court process which can be ‘disputed’ in the courts. This defines as a disputed case certain forms of nullity proceedings where no matrimonial or civil partnership order (formerly decree nisi etc) has been made, and then goes on:

(b) matrimonial or civil partnership proceedings (excluding nullity proceedings) in which—

(i) an answer has been filed disputing—

(aa) the validity or subsistence of the marriage or civil partnership; or

(ab) the jurisdiction of the court to entertain the proceedings,

and has not been struck out;…

There is no possibility there for you to challenge your spouse or partners assertion that your marriage or partnership is over; and there is no court mechanism for you to do so.

A challenge to these provisions?

These provisions raise two questions:

• Does Parliament have a power to say that the assertion of a spouse or civil partner that a marriage or civil partnership has irretrievably broken down cannot be challenged, which s 1(3)(a) seems to say? Or can a spouse or civil partner reasonably expect a family court to hear an answer to that assertion?
• Can the rule-makers (Family Proceedings Rules Committee: FPRC) artificially restrict issues in family proceedings which the court can try?

Under Human Rights Act 1998 and European Convention 1950 Art 6.1 (right to a fair trial) does s 1(3) and 44(4) raises a question as to B’s civil rights. The second question queries the powers of the Family Procedure Rules 2010 rule-makers to define what a person may or may not argue in the family courts.

Parliament has the power to pass s 1(3)(a), and has done so; but has B a ‘civil right’ to require the court to hear B’s view – as against that of A – as to whether a marriage or civil partnership has irretrievably broken down (eg where there is a lengthy period of reconciliation following the divorce application)? Is there any civil right to reply to an assertion of irretrievable breakdown? If so, s 1(3)(a) may be incompatible with the Convention (Human Rights Act 1998 s 4). If there is a right does the law fairly permit a person to call upon the court to protect it. Much of the human rights case law involves claims as between individuals and the state (ie public law proceedings); and not private law claims relating to statutory interpretation, as here. 

Civil rights: ‘autonomous’

The Strasbourg court describes civil rights as ‘autonomous’, that is to say such rights do not depend on the law of the individual state concerned. In Runa Begum (below), Lord Millett characterised the question of what are ‘civil rights’ as ‘very difficult’:  

[82] Whether those rights should be classified as ‘civil rights’ within the meaning of Art 6.1 is, however, a very difficult question. According to the consistent case law of the Strasbourg court the concept of ‘civil rights and obligations’ is autonomous. Its scope cannot be determined solely by reference to the domestic law of the respondent state: König v Federal Republic of Germany (1978) 2 EHRR 170, 192–193, para 88….

In König, the court explained civil rights and their autonomy as follows:

[89] Whilst the Court thus concludes that the concept of ‘civil rights and obligations’ is autonomous, it nevertheless does not consider that, in this context, the legislation of the State concerned is without importance. Whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right – and not its legal classification – under the domestic law of the State concerned….

Is there a ‘dispute’ over the right claimed

In Runa Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 AC 430 Lord Bingham looked at the claim and whether the claimant had been given a fair trial of her right to say she was intentionally homeless, where her right to challenge in the county court was limited to challenge of the reviewing officer’s decision on law only. Lord Bingham said:

[4] The first question, differently expressed, is whether Runa Begum’s right recognised in domestic law was also a ‘civil right’ within the autonomous meaning given to that expression for purposes of Art 6.1…

[5] The importance of this case is that it exposes, more clearly than any earlier case has done, the interrelation between the Art 6.1 concept of ‘civil rights’ on the one hand and the Art 6.1 requirement of ‘an independent and impartial tribunal’ on the other…. 

Lord Millett summarised the question in Runa Begum as whether the referral to a ‘reviewing officer’ determined Begum’s civil rights within the meaning of Art 6.1:

[78]… ‘The Strasbourg Court’ has repeatedly stated that the first step is to ascertain whether there was a contestation (dispute) over a ‘right’ which can be said, at least on arguable grounds, to be recognised under national law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and the outcome of the proceedings must be directly decisive of the right in question: see, for example, Mennitto v Italy (2000) 34 EHRR 1122, 1129, para 23.

In Mennitto the ECtHR said:

[23]  The Court reiterates that, according to the principles laid down in its case-law, it must first ascertain whether there was a ‘dispute’ (‘contestation’) over a ‘right’ which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question… Lastly, the right must be a ‘civil right.

The question, in these terms, must be whether a spouse of civil partner has a right protected by Art 6.1 to a trial – to ‘dispute’ or ‘contest’ – that their marriage has broken down. On county court referral, Lord Millett concluded (at [84]) that a difficulty in deciding her claim as ‘an assertion of her ‘civil rights’ within the meaning of Art 6.1 arises from the fact that the jurisprudence of the Strasbourg court in relation to the scope of Art 6.1 is still in course of development.’ Will this be the same for MCA s 1(3)(a)? Runa Begum’s appeal was refused.

Is there a ‘dispute over a “right”’?

This post returns to Mennitto and its emphasis on the need to decide ‘whether there was a “dispute” (“contestation”) over a “right”’. The answer for ss 1(3)(a) and 44(4) is whether a ‘dispute’ which the courts should sort out arises. Unquestionably a dispute arises. Whether a spouse or partner has a right to raise this issue in a family court is the question which s 1(3)(a) begs. Only time will tell whether the court accepts that an assertion of irretrievable breakdown is a family courts actionable ‘dispute’ where Parliament says otherwise. 

The fact of the possibility of this ‘dispute’ answers the second question: can the rule-makers limit the disputes a family court can hear arising from MCA 1973 and CPA 2004? First there is no power available to family proceedings rule-makers to limit a person’s rights in this way (see powers in Courts Act 2003 ss 75 and 76). If so, r 7.1(3)(b) is ultra vires the rule-maker. Second, if ss 1(3)(a) and 44(4)(a) is incompatible with Human Rights Act 1998, then to hear the dispute as to an answer to a ‘statement’ (MCA 1973 s 1(2), CPA s 44(1A)) must be the duty of the family court on application, it is proposed here, under Family Procedure Rules 2010 Part 7 (the divorce etc part of Family Procedure Rules 2010).

David Burrows is a solicitor advocate, specialising in family law.