As we move into 2019, it is a time to reflect upon two high profile cases which were heard in 2018 and could alter fundamental aspects of the family justice system.
Both the Supreme Court decision in Owens v Owens  UKSC 41 and in R (on the application of Steinfeld and another) v Secretary of State for International Development  UKSC 32 did not make immediate changes to the law, but have the ability to impact greatly upon the development of family law throughout the coming year and beyond.
The case of Owens involved the issue of proving fault in divorce. At present, the only ground for divorce in England and Wales is that the marriage has broken down irretrievably. A party must prove this by demonstrating one of the five facts detailed in section 1(2) of the Matrimonial Causes Act 1973: adultery, behaviour, desertion, two years’ separation with consent or five years’ separation.
Behaviour is the most commonly relied upon ‘fact’ as it does not require either the presence of adultery or for the parties endure a two-year wait in order to petition for divorce. However, a behaviour petition does require one party to list the reasons why the other party’s conduct has resulted in the irretrievable breakdown of the marriage. This can cause a great deal of tension and animosity at the outset of the divorce process. Even where parties have mutually agreed to separate, it is currently a reality that some blame must be placed upon one party in order to proceed.
In July, the Owens case was heard before the Supreme Court as Mr Owens had contested the divorce petitioned for by his wife. The Supreme Court ruled that Mrs Owens’ allegations were not sufficient to prove that the marriage had irretrievably broken down. She was denied a divorce and told that she would be required to wait for the date on which she had been separated for five years, in order to petition on the basis of five years’ separation without consent.
The case has provoked widespread criticism of the current fault based system for divorce and prompted a government consultation on no-fault divorce, which closed on 10 December 2018. This suggested that the require to asset one of the five fault-based ‘facts’ should be removed, couples should be able to give notice jointly that their marriage has broken down and remove the possibility of contesting divorce. The Law Society has recently published its response to the consultation, agreeing with the move away from a fault-based system.
In R (on the application of Steinfeld and another) v Secretary of State for International Development, an opposite sex couple appealed to the Supreme Court to be allowed to enter a civil partnership. Only same sex couples could decide whether enter into civil partnerships or marry.
The Supreme Court ruled that the Civil Partnership Act 2004 was incompatible with the European Convention on Human Rights as it only allows same sex couples to enter into a civil partnership and is thus discriminatory. As with the Owens case, this ruling put pressure on the government to rethink the legislation and allow for opposite sex civil partnerships, as announced by Prime Minister Theresa May shortly after the decision was announced.
A change in the law would make a momentous change to those cohabiting who do not wish to marry for religious, social or other reasons. At present, cohabiting couples are legally vulnerable as they do not have the same rights as married couples, whereas civil partnerships offer the same legal protection as marriage. The decision may also lead to further changes within the definition of a civil partnership, as there have already been discussions and motions put forward regarding civil partnerships for siblings who live together and wish to take advantage of the applicable tax benefits.
It will be interesting to see how these cases alter the way in which the family justice system works in 2019.
Beth Duffy is a solicitor in our Family department.
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