February 28, 2022
Statement as “conclusive evidence”
The 1950 European Convention guarantees the right to a fair trial. Everyone knows that. In 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 brought against him, everyone has the right to have his case heard fairly and publicly within a reasonable time by an independent and impartial tribunal established by law. ….
What not everyone knows is what a “civil right” is. And in the current context – namely divorce or dissolution of civil partnership – do you have the right to challenge your spouse or civil partner’s assertion that your marriage or civil partnership is irretrievably broken?
The Divorce, Dissolution and Separation Act 2020 simplifies the process of divorce and civil partnership dissolution by amending the law to make irretrievable breakdown – as now – the only ground for divorce or dissolution. But to prove it, it was no longer necessary to establish one or more facts: adultery (marriage only), unreasonable behavior or living apart for varying periods of time. Either or both parties may file a declaration of irrecoverable breakdown. The procedure for this is likely – no start date has been confirmed – to be in effect from April 6, 2022. Everything is so civilized so far.
The two laws dealing with divorce and the dissolution of civil partnership – the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 – in sections 1(3) and 44(4) respectively say:
A court hearing an application under subsection (1) must:
(a) regard the statement as conclusive evidence that the marriage [civil partnership] broke down irreparably…
This is where – perhaps – Article 6.1 of the 1950 European Convention comes into play; because this paragraph seems to say that if one of the couples says that their marriage is broken, that’s the end of the matter. The assertion cannot be disputed. You, the responding party to this claim (B), cannot use the courts to challenge what your spouse or partner (A) says. And this even if, later, you both pursue a conjugal or PACS life: that is to say that A and B are reconciled.
Divorce or dissolution after minimum 26 weeks
As the law currently stands, you will both be divorced or your partnership will be dissolved after a minimum of 26 weeks. The court must then make a final order (formerly absolute decree) without any compensation being granted to you to contest the case the declaration of irremediable breakdown. A and B’s marriage or civil partnership can be dissolved without comment from the court, even if B wishes to challenge the assertion that B’s relationship is irretrievably broken.
To complicate the situation, the rules amending the Family Procedure Rules 2010 (FPR 2010) distinguish between “standard cases” and “contentious cases”; but then the decision-makers sought – illegally given the extent of their power (i.e. they act ultra vires: external powers given to them by Parliament – to limit to a narrow band the forms of family court proceedings that can be “challenged” in court. This defines as litigious cases certain forms of nullity actions where no matrimonial or civil partnership order (formerly decree nisi etc.) has been issued, then continues:
(b) matrimonial or PACS proceedings (excluding nullity proceedings) in which:
(i) a response has been filed disputing—
aa) the validity or survival of the marriage or civil partnership; Where
(ab) the jurisdiction of the court to hear the proceeding,
and has not been deregistered;…
There is no ability for you to challenge your spouse or partner’s assertion that your marriage or partnership is over; and no judicial mechanism allows you to do so.
A questioning of these provisions?
These provisions raise two questions:
- Does Parliament have the power to say that a spouse’s or civil partner’s assertion that a marriage or civil partnership has broken down irretrievably cannot be challenged, which section 1 seems to say (3)(a)? Or can a spouse or civil partner reasonably expect a family court to hear an answer to this claim?
- Can the adjudicators (Family Proceedings Rules Committee: FPRC) artificially restrict the issues in family proceedings that the court can adjudicate?
Under the Human Rights Act 1998 and Article 6.1 of the 1950 European Convention (right to a fair trial), do Articles 1(3) and 44(4) raise a question as to B’s civil rights. The second question asks about the powers of the Family Procedure Rules 2010 adjudicators to define what a person may or may not plead in family court.
Parliament has the power to enact s. 1(3)(a) and has done so; but B has the “civil right” to require the court to hear B’s view – as opposed to A’s – as to whether a marriage or civil partnership has broken down irretrievably (for example, when there is a long period of reconciliation after the divorce petition)? Is there civil right respond to an assertion of irreparable failure? If so, Article 1(3)(a) may be incompatible with the Convention (Human Rights Act 1998 s 4). If there is a right, does the law fairly authorize a person to ask the court to protect it? Much of the human rights jurisprudence deals with claims between individuals and the state (ie public law proceedings); and not private law claims relating to the interpretation of statutes, as here.
Civil rights: “autonomous”
The Strasbourg Court describes civil rights as “autonomous”, that is to say that these rights do not depend on the law of the State concerned. In Runa Begum (below), Lord Millett described the question of what “civil rights” are “very difficult”:
 Whether these rights should qualify as “civil rights” within the meaning of Article 6.1 is, however, a very difficult question. According to the settled case-law of the Court of Strasbourg, the notion 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 Konigthe court explained civil rights and their autonomy as follows:
 While the Court thus concludes that the concept of “civil rights and obligations” is autonomous, it does not consider that, in this context, the legislation of the State concerned is irrelevant. Whether or not a right is to be considered civil within the meaning of that expression in the Convention must be determined by reference to the content and material effects of the right – and not to its legal characterization – under the domestic law of the country. State concerned… .
Is there a “dispute” over the claimed right
In Runa Begum v Tower Hamlets LBC  UKHL 5,  2 AC 430 Lord Bingham considered 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 county court was limited to challenging the reviewing officer’s decision on law only. Lord Bingham said:
 The first question, expressed differently, is whether Runa Begum’s right recognized in domestic law was also a “civil right” in the autonomous sense given to this expression for the purposes of Article 6.1…
 The importance of this case is that it sets out, more clearly than any previous case, the interrelation between the concept of “civil rights” in Article 6.1 on the one hand and the requirement of Article 6.1 d an “independent and impartial tribunal” on the other hand. other….
Lord Millett summarized the issue in Runa Begum if referral to a “reviewing officer” has determined Begum’s civil rights within the meaning of Section 6.1:
… “The Court of Strasbourg” has repeatedly stated that the first step is to determine whether there is a dispute (dispute) over a “right” which can be said, at least on arguable grounds, to be recognized by national law. The dispute must be real and serious; it may relate not only to the actual existence of a right but also to its scope and the methods of its exercise; and the outcome of the proceedings must be directly decisive for the right in question: see, for example, Mennitto against Italy (2000) 34 EHRR 1122, 1129, para. 23.
In Mennitto the ECHR said:
 The Court recalls that, according to the principles enshrined in its case-law, it must first ascertain whether there has been a “dispute” (“dispute”) over a “right” of which it can be said, at least arguably, that it be recognized in domestic law. The dispute must be real and serious; it may relate not only to the actual existence of a right but also to its scope and the methods of its exercise. The outcome of the procedure must be directly decisive for the law in question… Finally, the law must be a “civil law”.
The question, in these terms, must be whether a PACS spouse has a law protected by Article 6.1 to a trial – to “challenge” or “dispute” – the breakdown of their marriage. On remand to the County Court, Lord Millett held (at ) that a difficulty in ruling on his claim as an “assertion of his ‘civil rights’ within the meaning of Article 6.1 stems from the fact that the case law of the Court of Strasbourg relating to the scope of application of Article 6.1 is still in development.’ Will MCA 1(3)(a) be the same? Runa Begum’s appeal was denied.
Is there a “dispute over a ‘right'”?
This post goes to Mennitto and its insistence on the need to decide “whether there has been a ‘dispute’ (‘dispute’) over a ‘right'”. The answer for ss 1(3)(a) and 44(4) is whether a “dispute” arises which the courts should decide. Undoubtedly a dispute arises. The question of whether a spouse or partner has the right to raise this issue in family court is the question raised by paragraph 1(3)(a). Only time will tell if the court accepts that an assertion of irremediable failure is a “dispute” actionable in family courts when Parliament says otherwise.
The fact of the possibility of this “dispute” answers the second question: can legislators limit the disputes that a family court can hear arising from MCA 1973 and CPA 2004? Firstly, family proceedings decision makers have no power to limit a person’s rights in this way (see the powers of the Courts Act 2003, sections 75 and 76). If yes, r 7.1(3)(b) is ultra vires the rule maker. Second, if sections 1(3)(a) and 44(4)(a) are inconsistent with the Human Rights Act 1998, then to hear the dispute as to a response to a “declaration” ( MCA 1973 s 1(2), CPA s 44(1A)) shall be the duty of the family court on application, it is here proposed, under the Rules of Family Procedure 2010 Part 7 (the divorce, etc. part of the Family Procedure Rules 2010).
David Burrows is a family law attorney.