On Wednesday, the Supreme Court announced that Tini Owens’ appeal to divorce her husband had been rejected. This means Mrs Owens must remain unhappily married to her husband until 2020, when she can use five years separation as the legal reason to divorce him without his agreement.
The decision has sparked a debate on the need for divorce law reform, and in particular, for the government to consider no-fault divorce. Earlier this week, Lady Butler-Sloss, a retired judge, set out a Private Members Bill in the House of Lords asking the government to commit parliamentary time to modernising our outdated and draconian divorce laws. Today’s judgement means this is more pressing than ever.
Tini Owens, 68, and Hugh Owens, 80 have been married for nearly 40 years. The couple separated in February 2015. Mrs Owens started divorce proceedings against Mr Owens in May 2015 using “behaviour” as evidence that her marriage had broken down irretrievably (the single fact you must prove if you wish to divorce). Usually, people accept that if one person feels the marriage has broken down then it has, and it’s over. However, in this case Mr Owens defended the case and a legal battle ensued. The application was rejected by the High Court, the Court of Appeal in March 2017 and today, “with reluctance” by the Supreme Court too. As he handed down judgement, Lord Wilson made it clear this was not a preferable outcome and questioned whether the current divorce laws were “satisfactory”.
Why did Tini Owens lose her appeal? Under current legislation you must cite examples of behaviour that mean you can no longer be reasonably expected to live with someone. In looking at behaviour cases, judges must balance both the objective facts of the case and the subjective effect on the person filing the case (the petitioner). The court ruled that the examples cited (27 in total) were not sufficient to prove the irretrievable breakdown of the marriage in this case. The Supreme Court questioned whether the judge had taken all Mrs Owens’ concerns into account (the judge had only looked at four main complaints vs the 27 alleged), and Lady Hale suggested that previous hearings had not been conducted in such a way as to consider the cumulative effect of the alleged authoritarian and demeaning conduct of Mr Owens. There is an undeniable whiff of sexism implied in this case: a male judge felt Mrs Owens was more “sensitive” than normal and that this mitigated the subjective evidence.
The fear from many is that the judgement will be interpreted as requiring petitioners to “beef-up” their divorce petitions, which leads to more conflict. Like many, I believe that an amicable divorce is better for individuals and families, especially children. My own fear is that people will feel the need to write harsher behaviour petitions and that will mean longer, and emotionally more ruinous divorces. Whilst others will argue that, intellectually, the judgement should not be interpreted like that (and they are correct) what filters out into real life is often very different from what is handed down in judgements. It is this fact that should drive urgent reform.
At the heart of this case is the courts’ reluctance to re-interpret the current legislation. It has always been the case that judges cannot change or make the laws. They can re-interpret them to ensure prevailing standards of conduct are taken into account. In this case, the court failed to re-interpret the law, leaving the only option for change being an urgent change to divorce laws.
Lady Butler-Sloss’s Private Members Bill now looks like the way forward for the campaign for divorce law reform. The bill requires the government to review the divorce laws and report back within six months. It also demands the Lord Chancellor to consider an alternative model for divorce that has been put forward, the notification process. This would take any subjectivity or blame out of divorce and require one or both people to register the breakdown of the marriage followed by a nine-month cooling off period. The bill has its second reading early autumn, but after today’s judgement the momentum is back with the campaign for change. I, along with very many others, hope that the government will step in and Private Members Bill will not have to fight its way through parliament. It’s been 50 years since divorce laws were reformed – I’m hoping not even Brexit will get in the way of no-fault-divorce now.