Are our divorce laws still fit for purpose?

Whilst it’s incredibly easy to get married in 2017, divorce it seems isn’t quite so easy. Tini Owens knows this to her cost. Judges in the Court of Appeal recently rejected her petition to divorce, meaning that the 65-year-old is, as she describes it, “locked in” her 39-year-old marriage to 78-year-old Hugh Owens.

Mrs Owens finds her husband’s behaviour unreasonable, and says she feels unloved, isolated and alone. With the judge’s refusal to allow her a divorce, she remains married to someone who continually berates her, and she clearly finds him intolerable to live with.

Under current law, if one party refuses to divorce, the couple must separate for five years before a divorce can be granted without consent. This means that Mrs Owens will be forced to live next door to her estranged husband for several years before their divorce proceedings can begin.

 

How the appeal arose

Tini Owens had applied to overturn a ruling made in the Family Court that her marriage had not broken down irretrievably, despite her having an affair. Hugh Owens opposed divorce, saying they had a few years left to enjoy.

The District Judge held that her husband’s behaviour had amounted to no more than “minor altercations of a kind to be expected” during a marriage. As unreasonable behaviour was the ground on which Mrs. Owens relied, her husband was able to successfully defend against the divorce.

The three judges, Sir James Munby, Lady Justice Hallett and Lady Justice Macur dismissed her appeal. Explaining the judges’ position, Sir James Munby said: “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.”

Commentators have observed that as a result of this case there is a real risk that a person seeking a divorce will feel compelled to exaggerate their spouse’s behaviour, in the hope of persuading a judge that the marriage has broken down. Couples could resort to deception to build up evidence in support of their allegations of unreasonable behaviour, or to prove that their spouse has been unfaithful. This could result in divorce becoming ever-more stressful and litigious than it is already.

Joyti Henchie, Partner and Head of Family Law, comments: “At present, the law forces divorcing couples either to prove adultery, be separated for at least two years, or blame the other party and prove that their behaviour led to the breakdown of the marriage. However, in many instances, both parties mutually agree that the marriage isn’t working, so being forced down this path causes unnecessary hostility and distress between them. Although archaic, the current law is clearly designed to make divorce difficult, and to preserve the sanctity of marriage. Laudable sentiments unless you are deeply unhappy.”