The calls for no fault divorce have grown louder this week after an Oxford judge has failed to allow a divorce to proceed.
Tini Owens petitioned for divorce on the basis of her husband’s unreasonable behaviour. The parties married in 1978 and have been separated two years. Mrs Owens moved out of the family home before that, in 2013.
We haven’t seen the examples of behaviour cited in the petition, but the press reports mention specifics such as his “continued beratement” of her, “making her pick up bits of cardboard in the garden” and “stinging remarks” during a meal with another friend.
Now this may well be par for the course in some marriages, as Mr Owens’ team has argued, but the point is that in today’s society, no one should have to remain married to another person if they don’t want to be.
Hundreds, if not thousands of unreasonable behaviour petitions go through the court each year. Most of those are from parties who have agreed a separation and want to divorce straight away, but can’t under current law without there being an element of blame. Cue dozens of petitions where examples of unreasonable behaviour are pulled together that are sufficient to pass the threshold required, and a lot of awkwardness and embarrassment between the couple involved, where one has to “blame” the other, where more often than not they have done their very best to avoid getting into mud-slinging and unpleasantness in the first place.
There will of course be dozens of petitions issued where the Respondent doesn’t agree to a divorce, but in the vast majority of cases, there is usually little they can do to stop the divorce going through. Defended divorces rarely succeed, and clients indicating they wish to oppose a divorce are very strongly advised not to try to defend a divorce on the basis that they are likely to lose, it is costly, and they could end up paying the other party’s costs as well as their own. On the odd occasion that they do succeed, it would be because a divorce would cause undue hardship to the spouse. The Owens case is therefore surprising – they are a wealthy couple so this will not apply. Yes, they can afford to live separately, but this is not a reason to force them to remain married (and indeed, living separately seems to reinforce the fact that there isn’t a salvageable marriage).
It cannot be right in 21st century society that one person should have to remain married because their spouse doesn’t agree to a divorce.
The sole ground for a divorce is the “irretrievable breakdown of the marriage”. This is supported by one of 5 facts (including adultery and unreasonable behaviour). Without Mr Owens’ agreement (in which case they would have to wait 2 years), under the law as it stands, the only way Mrs Owens can proceed with her divorce is based on 5 years’ separation, without consent. It is not fair or appropriate for Mrs Owens to have to wait 5 years to do this, when others in her position can divorce within a matter of months.
The reasons for wanting to separate are entirely subjective and it is not for someone else to say whether those reasons are strong enough to merit a divorce. Surely the very fact that Mrs Owens is willing to take matters this far is proof enough that she really does not want to be married any longer.
One can only hope that the Court of Appeal sees sense, grants the appeal and the divorce is allowed to proceed. Sir James Munby, President of the Family Division, is hearing the appeal and has spoken out strongly in favour of no fault divorce in the past. Any judgment handed down will hopefully contain strong indications of the need for divorce reform, including the introduction of no fault divorce and a more straightforward divorce process, where hurdles like this one do not exist.
Resolution continues to call for No Fault Divorce and as National YRes Chair I fully support this. You can read some of my comments on the matter here.