A few weeks back Tini Owens appealed to the Supreme Court to grant her a divorce from her husband of 40 years, who is refusing the split. The Supreme Court unanimously rejected her appeal, meaning she must remain married until 2020. The decision was a sad but legally correct outcome of a bad law. Below Stephen Bartlet-Jones, Barrister at One Pump Court, explores some of the important considerations and remaining questions surrounding this complex family law case.
The law correctly recognises that the only ground of divorce present in this case is “irretrievable breakdown of the marriage”, but as things stand that is not enough. One of five facts have to be proven: adultery, desertion, unreasonable behaviour, 2 years’ separation with consent and 5 years’ separation without consent. Under the current law, therefore, it is potentially as much as 5 years quicker to get a divorce if you blame your spouse for the end of the marriage. It is also one of the few differences between civil partnership and divorce, since a civil partnership cannot be brought to a quick end due to adultery being proven.
Very few marriages end because one person was wholly in the right and one was wholly in the wrong. Indeed, I’m not sure it can be said that marriages where one party has behaved unreasonably or committed adultery have “irretrievably” broken down: many spouses are able to forgive and move on from all sorts of appalling behaviour. It certainly cannot be said that one needs to wait two or five years to know that a marriage has irretrievably broken down just because the parties have maintained civility and remained faithful.
The need to set out “unreasonable behaviour” is a tinderbox for couples already permanently living on the edge of an argument. It is hard enough to put on a combined front to reassure children, and to avoid putting them in the position of having to choose between their parents: when reacting to an inflammatory divorce petition that has landed unexpectedly on the doormat, many parents lose their cool and it is the children who suffer. It can leave bad feeling for many years to come, and I have met many children of divorcees who can still quote lines of the divorce petition because their parents repeated them so many times during their childhood. The effect of the state determining who’s to blame for the marriage breaking down is often to make the causes of the marriage ending seem very black and white.
It must also be said that the current law forces couples to spend money on solicitors which could be better used to help them turn one household into two. Solicitors are required to negotiate who will be deemed to be at “fault" and what form that “fault” will take. They are needed to navigate the minefield of petitions, cross-petitions and riders that eventually lead to a level of “fault” being recorded on the public record that both spouses can live with.
Back in 1996, the government legislated for “no-fault divorce”. Because it was afraid of being seen to cheapen the institution of marriage, it built in a mechanism of compulsory information meetings which proved unworkable, and so the legislation was never brought into force. It was a wasted opportunity. Yet the answer may be contained within our current divorce laws, without the need for complex and specific changes that may take years to pass. Nobody would disagree with the only current ground of divorce: that the "marriage has irretrievably broken down”. If the parliament scrapped the need to prove that by means of specific “facts of divorce”, it would have achieved “no fault divorce” without the complication of introduced by the Family Law Act 1996. At the same time, it could introduce a minimum “cooling off period” before the divorce can be finalised - I would favour a period of 6 months, and certainly no more than one year. It takes that long to sort out the finances and child arrangements in most cases anyway. The mechanism for that cooling off period is already there in our law: the court currently makes a “decree nisis” (a conditional order of divorce) and won’t grant the decree absolute (the final divorce order) for a minimum of six weeks and one day. By extending this six-week period to a more politically acceptable “cooling off period” of say 6 months, a no-fault divorce could be achieved by means of very simple legislation.
When you look at the case of Tini Owens, you cannot help feeling that something must be done to help her and others in her position. The case has dominated the headlines, with commentators up and down the country questioning how we can reasonably keep somebody locked in a loveless marriage. Can we really call Tini Owens a free woman if she must wait until 2020 before she can move on with her life?
