The 17th May saw five Supreme Court Judges being asked to decide if Tini Owens can divorce her husband Hugh Owens. The couple have been married for over 40 years and Mrs Owens wants to bring the marriage to an end; her husband does not. He defended her divorce petition, and the lower courts who considered the case found in his favour, refusing to allow the divorce to continue.
Defended divorces are extremely rare. Family practitioners have over the last 30 years increasingly tried to work in ways that minimise conflict and this has been supported by the judiciary. Whilst attitudes on what is good practice may have moved with the times, the basic legislation has not.
The core principles of divorce legislation (including the basis of any divorce and the supporting grounds) were initially drafted in the late 1960s and early 1970s. These formed the foundations of the Matrimonial Causes Act 1973 that is still in force today. Just because it is an old law doesn’t necessarily mean it is a bad law, however, society and basic expectations have moved on.
Imagine the law as a car – in 1973 the Austin Allegro was introduced by British Leyland. On the face of it, the Allegro did the job it was designed for at that time. However, it has no air bags, no anti-locking brakes, no air conditioning, no parking sensors or self-parking facility, or electric anything, and it is slow, uneconomical and inefficient. If it was introduced today it would not be fit for purpose.
The same could be said for the current divorce legislation. As it stands, a petition has to be based on the fact that the marriage has broken down irretrievably. To show this to the court’s satisfaction, the person lodging the petition has to either rely on the adultery or unreasonable behaviour of their spouse, or wait to be apart for 2 years’ desertion or 2 years’ separation with the agreement of the other party. If that agreement is not forthcoming, then a 5 years’ separation petition is all that is available.
Tini Owens may find herself in the position of having to wait for a period where she has been separated for 5 years if her appeal to the Supreme Court is unsuccessful. Thus far, the court have decided that the particulars of behaviour that she put in her petition were not enough to convince them that the marriage had broken down because of that behaviour. A couple of points arise:
- This is a subjective and an objective test; the fact that Tini felt subjectively that the marriage had run its course because of Hugh’s behaviour is only part of the consideration. The court, objectively, had to also feel that the behaviour was enough to lead to the marriage failing. So far they have not been convinced. However, from a practical perspective, if one party says that they believe the marriage is at an end, then it is not a viable marriage, even if their spouse doesn’t want the marriage to end. What is the point in forcing these people to continue to be married? Could it not be argued that defending divorce proceedings is in itself evidence of how unreasonable that spouse is?
- Had Hugh Owens not defended the petition, I am in no doubt that the petition would have proceeded and been accepted by the Judge who had to consider it at the decree nisi stage. If that is correct, then how can it be right that one standard would have been applied had the case, possibly reluctantly, been undefended and a higher standard be applied in the event of a defended divorce? If it is correct to say that the legislation is not being interpreted so strictly by Judges and practitioners in most cases that progress though the Family Court each year, then should the primary legislation be looked at again and revised, or should the Judges be made to strictly apply the current legislation even if it is not fit for purpose?
It is not the role of the Judiciary or family solicitors to legislate. However, there is no political will to deal with the issue. Taking a fresh approach to how we divorce is not a vote winner and successive governments have kicked reform in to the long grass. Until there is a groundswell of support for things to change, nothing will change and people like Tini Owens will be forced through years of unnecessary emotional and financial stress and strain. Could her case be the one to bring these issues to the wider public attention?
The judgement on this case is due later in the year. Until then people and practitioners alike will be stuck on the hard shoulder with their Austin Allegro legislation in a Tesla world.
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