The recent case of Mrs. Tini Owens brings concerns regarding current divorce law into the public light, with leading legal minds calling for the introduction of a standard permitting divorce without having to evidence blameworthiness on the part of one’s spouse.
Section 1(1) of the Matrimonial Causes Act 1973 sets out one sole ground for divorce: the marriage has irretrievably broken down. Section 1(2) then lists five facts, at least one of which must be the case to satisfy s.1(2). These facts are:
a) Adultery;
b) Unreasonable behaviour;
c) 2 years of continuous desertion;
d) 2 years of continuous separation (i.e. living apart) where the parties to the divorce both consent to the divorce;
e) 5 years of continuous separation where one party does not consent to the divorce.
Key to note about these five facts is that they assign blame, and hence, proponents of divorce law reform argue, promote “unnecessary antagonism”. Those were the words used by Justice Secretary David Gauke while announcing plans to begin a consultation on introducing “no-fault” divorces. However, reforming divorce law is not a novel idea: the Law Commission recommended such action in 1990, yet Parliament declined to take it forward. This latest drive to introduce “no-fault” divorce is in no small part due to the case of Owens v Owens [2017] EWCA Civ 182. In July, the Supreme Court unanimously deprived Mrs. Tini Owens of a divorce from her husband of 40 years, who refused the divorce, on the grounds that he had not behaved “unreasonably” enough, nor had Mrs. Owens lived outside the matrimonial home for long enough. This is despite Ms. Owens allegedly contemplating ending her “loveless” marriage since 2012. The Supreme Court Justices were explicit in their displeasure at handing down this judgement: Lady Hale found the case “very troubling”, while Lady Black said she reached her conclusion with “no enthusiasm whatsoever”.
Jonathan Herring, a leading academic in Criminal, Family and Medical law at the University of Oxford, has identified a number of concerns with the current law. Herring suggests that the law’s focus on blameworthiness, giving rise to conflict, causes suffering to children borne from the marriage. To add, there is a distortion in bargaining power in favour of the
non-consenting party to the divorce, as they can use the threat of an extra 3 years of separation as a bargaining tool.
To add to this is the general issue that the current system provokes unnecessary hostility and bitterness, giving rise to distress and embarrassment where allegations must be made public in a contested divorce. Section 1 of the Family Act 1996 states that an aim of divorce law is to minimise emotional harm and persuade people to reconcile – there are surely few things more damaging to hopes of reconciliation than making allegations of unreasonableness in the hope of separation.
It is unclear just how Parliament will go about reforming divorce law, however it is possible that it will align with Sections 5 to 9 of the Family Law Act 1996, later scrapped for unworkability, which set a timetable for divorce, the divorce taking place for up to 18 months. It also required attendance at “information sessions” for the first 3 months of the process, the sessions organised by the party wishing to initiate the divorce, in the hope that the 3 months would act as a “cool-off” period to encourage mediation and reconciliation. Ms. Owens’ lawyers suggested after her case that it is undesirable to have to prove the other party acted “unreasonably”; rather, one should have to show that they should not “reasonably be expected to remain” with their spouse. This would remove the element of blameworthiness and provide a broad criterion by which a divorcing party could establish that a divorce were appropriate.