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Protecting Privacy in Divorce Actions: Article 8 and the Need for Law Reform

Document Cited authorities 8 Cited in Related
Vincent
Published date01 September 2019
Pages332-359
DOI10.3366/elr.2019.0572
Date01 September 2019
Author
INTRODUCTION

The role of divorce in society and the allied challenge of law reform in this area constitutes one of the most contentious areas of family law and adult relationships. Whether divorce should be a vehicle for upholding the institution of marriage and punishing fault, or a means to allow a couple to retreat gracefully from their broken marriage, mark opposite ends of the divorce spectrum. Society's position has shifted along this spectrum over time, yet the two ends remain much as they ever were: with conservatives arguing that any liberalisation of divorce laws jeopardises the institution of marriage and imperils society; and progressive camps contending that divorce law is not there to prevent a marriage from failing, but to provide a dignified exit from an already-failed relationship.1 Across Europe, divorce laws reflect this range, from those jurisdictions which require fault on the part of one spouse, typically through adultery, behaviour, or desertion, to the more consensual “divorce on demand” favoured for example in the Scandinavian jurisdictions. The full spectrum, and the typical co-mingling of different approaches within any one jurisdiction, has been summarised by Antokolskaia:

These grounds [for divorce] have entered or re-entered the European stage at various moments in history and under the influence of various circumstances and ideas, and so could be characterised as different generations of divorce law. The fault divorce (in other words, divorce as a sanction) came into play during the Protestant Reformation under the influence of Reformed theology, while irretrievable breakdown of the marriage (in other words, divorce as a remedy of failure) and mutual consent (in other words, divorce as an autonomous decision by the spouses themselves) developed on the eve of and during the French Revolution under the influence of the Enlightenment, and divorce on demand (in other words, divorce as an individual right) appeared after the Russian Revolution of 1917 as a result of the radical secularisation and de-ideologisation of marriage. These grounds are products of different epochs, and all are simultaneously present in contemporary Europe. Moreover, they all exist in many jurisdictions alongside or in combination with one another.2

Scotland is one such jurisdiction. While fault-based grounds remain, they sit alongside the more neutral fact of non-cohabitation for a period of time. Moreover, the reality of litigation means that Scots law has, in effect, divorce by consent in cases where the spouses are prepared to cooperate, for example by not defending the action. While there is a case for reform of divorce law on the substantive merits alone,3 this article seeks to make the case that divorce law in Scots law is fundamentally flawed for a very specific reason: it breaches the parties' article 8 ECHR right to privacy. There is thus a strong case for law reform to ensure that the statutory basis of divorce provided by the state respects the privacy of all parties concerned. In this article, I will advance this argument by outlining the basis for divorce at present, and the personal and private information which must be disclosed to the state in order to secure a divorce. I will then examine this against the requirements of article 8.4 I will conclude by framing briefly a revised divorce law which would facilitate divorce without infringing the privacy rights of the spouses or any other parties.

Before turning to this argument, three critical points must be made. The first is to emphasise that the argument I seek to make here, advocating for divorce law reform on the basis of privacy rights under article 8, is distinct from the case for reform (or not) based on the substantive merits of fault and no-fault divorce. The campaign for divorce law reform has gathered pace in England and Wales in the last two years, prompted by growing concern amongst practitioners and the judiciary that the current law promotes antagonism and conflict, rather than seeking the most constructive exit from the marriage.5 Academic research has demonstrated convincingly that the time for reform is overdue: Professor Trinder and her colleagues published the results of their extensive empirical research into how the public use and misuse the English divorce provisions, concerns of the profession, and evidence of the damage it causes, in their 2017 paper “Finding Fault? Divorce Law and Practice in England and Wales”. And matters arguably came most forcefully to the fore in Owens v Owens,6 wherein Mrs Owens was denied a divorce on the basis that she could not meet the statutory test, despite the evidence indicating that her marriage had indeed irretrievably broken down. In its July 2018 decision, the Supreme Court described this as a troubling case,7 but were powerless to intervene in the face of the statute.8 The Government launched a consultation on the reform of divorce law, which closed in December 2018.9 This culminated in the announcement, on 9 April 2019, by the Justice Secretary, David Gauke, that the Government would bring forward legislation for no fault divorce in the next session of Parliament,10 and the Divorce, Dissolution and Separation Bill was introduced on 13 June 2019. There is clearly much to be said about removing fault from divorce law, and I will draw on such evidence where relevant – yet the primary focus of this article will be on the privacy rationale for reform.

Secondly, although disclosure of financial information is often part and parcel of a divorce hearing to allow the judge to make an award regarding financial provision, and child contact issues may also raise their head, the focus here is exclusively on the mechanics of obtaining a divorce, and the personal information required to be disclosed to secure that. Financial provision and child contact are secondary issues (albeit often of equal or greater concern to the parties), which are not directly relevant to the decree of divorce, and are therefore excluded from this analysis. Any information which is required to be disclosed in pursuit of financial provision or child contact is separate from the question of what should be disclosed to obtain the divorce itself.

My third and final preliminary point is to emphasise that the privacy arguments advanced here are not intended to encourage a culture of marital secrecy or to require abusive and harmful behaviour to stay behind closed doors. For too long, the legal emphasis on privacy in family life led to a refusal on the part of the Government to recognise domestic abuse, child abuse, or marital rape: respect for family privacy resulted in non-intervention and enabled abuse to continue.11 The work done to bring these abuses into the open, to recognise them, and to provide legal responses to them, must not be undone. Respecting the privacy of the parties by not compelling them to disclose personal and private information (about themselves or each other) in the context of divorce is, however, very different from failing to respond to such disclosures in the context of abuse. Only the latter should be a matter for the law. Moreover, the fact that the law currently facilitates disclosure of personal information in divorce could in itself be used as a tool for domestic abuse, with threats by one spouse to reveal details of an affair or particular behaviour, in order to control or manipulate the other spouse. Removing this from private law removes one possibility for coercive control.12

 THE GROUNDS FOR DIVORCE

There are two grounds for divorce in Scotland: the irretrievable breakdown of the marriage, and the issue of an interim gender recognition certificate.13 In England, the sole ground of divorce at present is that the marriage has broken down irretrievably.14 This article examines the irretrievable breakdown of marriage, and the evidence required to prove it. While the opening section of the Divorce (Scotland) Act 1976 (“1976 Act”) and the Matrimonial Causes Act 1973 (“1973 Act”) both state that the ground for divorce is the irretrievable breakdown of marriage, this can in fact only be fulfilled by proving that the breakdown has resulted from one of four (in Scotland) or five (in England and Wales) specified “sub-grounds”. There is some confusion over whether these sub-grounds are in fact “grounds” for divorce, or whether the only relevant ground (in this context) is the irretrievable breakdown, and these listed categories are “facts”. In a recent Scottish Sheriff Court decision, Sheriff Mann classed the sub-categories as “grounds”, with reference to wording in the Scottish legislation. Having referred to the phrasing of section 12 of the Family Law (Scotland) Act 2006, which stated that desertion was no longer to be a ground, he concluded:

That is a clear indication that the legislature considered desertion to be a separate ground upon which irretrievable breakdown of marriage could be established. If desertion was a separate ground then so too were, and are, adultery, unreasonable behaviour and the periods of non-cohabitation.15

In contrast, the English legislation refers to the five “facts” by which irretrievable breakdown can be established. The terminology adopted in this article will reflect these positions, referring to any of the four or five bases for establishing irretrievable breakdown as “grounds” or “facts”. Thus, in Scotland, the four grounds for irretrievable breakdown set out in the 1976 Act are:

1(2) The irretrievable breakdown of a marriage shall, subject to the following provisions of this Act, be taken to be established in an action for divorce if—

since the date of the marriage the defender has committed adultery; or

since the date of the marriage the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit...

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