Hard Divorces Make Bad Law

Abstract

This case comment considers the decision in Owens v Owens [2017] EWCA Civ 182 in which the wife's appeal against the decision to refuse to grant her a decree nisi was rejected on the basis that she had not proven the s1(2)(b) Matrimonial Causes Act 1973 'behaviour' requirement. In his judgment in the Court of Appeal, Munby P poses the 'profoundly important point of principle and public policy' at stake: 'ought the decision whether or not a marriage should be dissolved to be one for the parties which the State is not in a position to question?' (para. 90). That the Owens' case is before the court, however, suggests a different question: where a marriage has broken down as a matter of fact, ought one party's experience of the marriage to be sufficient to hold that it has also broken down as a matter of law, without the significance of that experience being vulnerable to challenge by either the other party or the State?

Keywords: Matrimonial Causes Act 1973 s1; contested application for a decree nisi; unreasonable behaviour; no fault divorce