Hard Divorces Make Bad Law

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?

It will be published in the (2017) 39 Journal of Social Welfare and Family Law.  A pre-editing version of this case comment is available here.