Proposed Law Reform for Divorce

A controversial ruling by the UK Supreme Court that a woman must remain in an unhappy marriage until 2020 has prompted calls for divorce law to be reformed, to allow for “no fault divorces” in the UK. The case of Mr and Mrs Owens has highlighted the extent to which the UK divorce law differs significantly from many other countries.

Under no-fault systems, divorce is possible if one spouse wants to end the marriage, and “blame” is therefore avoided, along with the potential for acrimony.

The ruling on the recent Owens v Owens case highlights the fact that, if one party is determined to prevent the divorce, a divorce can be  more difficult to obtain in England and Wales than in many other countries, including Argentina, China, the Netherlands and Russia, where no-fault divorces exist.

In China, for example, divorces may be granted immediately following marriage, while in Russia there is no legal obligation to cite reasons for the marriage breakdown. In Argentina there is no provision to allow fault-based divorce applications, and a divorce can be applied for jointly or unilaterally.

A recent report showed that only three countries came out worse than the UK in respect of divorce law: the Philippines, (where divorce is illegal); Israel, where divorce is governed by religious courts; and the United Arab Emirates, where fault must be proven and a court-appointed conciliator must attempt to reunite couples.

In the Owens case, Mrs Owens’ original petition for divorce, after a 40 year marriage, citing her husband’s “unreasonable behaviour”, was defended by her husband, and therefore was dismissed by the UK’s Family Court and Court of Appeal. They ruled that the examples given were not objectively bad enough to prove it was unreasonable for her to continue living with him.

The Supreme Court unanimously rejected her appeal on 25 July,2018, stating that although the case was ‘very troubling’, it was not for them to change the law.

Despite dismissing the appeal, the Supreme Court justices expressed concern over the ruling, with the Court’s President, Lady Hale, stating the case was ‘very troubling’. James Munby, President of the Family Law Division, who at an earlier appeal  criticised divorce law for being based on ‘hypocrisy and a lack of intellectual honesty’, emphasised it is the responsibility of judges to apply the law ‘as they find it, rather than as they wish it to be’.

The Matrimonial Causes Act 1973, which governs our current divorce law, only gives the option of a “no blame” divorce if married couples first separate for two years, with the other spouse giving their consent to the divorce.  Without consent the couple would need to live apart for five years before presenting a petition for divorce.  Although the Owens had been living separately since 2015 (more than 2 years, but less than 5), Mrs Owens’ only option (in the absence of Mr Owens’ consent) was to file for divorce on the basis of Mr Owens’ “unreasonable behaviour”.   Mr Owens  argued that he did not want to be divorced from his wife. As a result of the Supreme Court ruling, (as detailed above) Mrs Owens will now have to wait until 2020, when the parties have been apart for 5 years, to obtain the divorce.

In most cases, it is still possible to obtain a divorce, as it is rare for divorced to be defended, even where the couple don't agree on the precise reasons why their marriage has broken down, it is unusual for them to dispute the fact that it is over. However, the Owens case showed that where one person is determined to stop the divorce, the courts hands may be tied. A worrying effect of this is that people seeking a divorce may feel that they need to give much more detail about their spouse's behaviour, to ensure that the court will accept that it is bad enough to justify divorce. This of course increases the risk of the divorce being antagonistic and aggressive.

Following the ruling, the Ministry of Justice said it was ‘looking closely at possible reforms to the system’, recognising that ‘the current system of divorce creates unnecessary antagonism in an already difficult situation’.

The Law Society, alongside family lawyer organisation Resolution, (both Marjorie Taylor and Marion Fisher are members of Resolution), promote a code of conduct focused on reducing conflict and confrontation in divorce proceedings. Both bodies believe that fault-based divorces undermine this process, as well the mediation process, and encourage lawyers to avoid putting too much detail into petitions based on behaviour, to try to reduce conflict. However, this can create difficulties of the divorce is contested.