Are we any closer to divorce law reform following Owens v Owens?
On 25 July, divorce solicitors across the country eagerly awaited the Supreme Court’s ruling on Owens v Owens.
The case hinged on Mrs Owens’ desire for a divorce from her husband of 40 years – a marriage that, she said, was loveless and had broken down irretrievably. Citing unreasonable behaviour as her grounds for divorce in 2015, her husband contested the divorce and the court found they could not grant the decree because Mrs Owens had failed to prove her case that the marriage was in fact “irretrievable”.
Mrs Owens appealed.
The case that sparked more no-fault divorce debate
There has long been a hard core of campaigners who believe our divorce system is fraught with difficulty because the petitioner must prove fault and the respondent must admit or deny that fault.
The system is fundamentally adversarial and, in many people’s opinions, it is an outdated notion that judges should decide whether a couple’s marriage is over. Nonetheless, this is the requirement of current law and in Owens v Owens the Supreme Court could do no more than dismiss the appeal, albeit, they said, reluctantly.
Mrs Owens will be, as she puts it, forced to stay in a loveless marriage – at least until five years of separation have been endured and then she won’t need her husband’s agreement. This will be in 2020.
Owens v Owens has caused significant noise in the realms of family law, While some commenters have been disparaging about the Owens and their affairs, their moneyed lifestyle and the long-running legal battle which has become the stuff of headlines, others have taken the case as an opportunity to shout loudly about divorce law.
Indeed, in handing down their ruling the judges’ language revealed a great sense of unease about the situation. Lady Hale, Supreme Court president, said she found the case “very troubling”, while Lord Wilson admitted that the “uneasy feelings” the case had generated could be “of no consequence” to the court.
The law, as it stands, has been applied correctly, but in doing so this has allowed divorce solicitors and family law reform commentators to debate with renewed ferocity.
Matrimonial law as slavery?
High profile divorce lawyer Ayesha Vardag likened divorce law to a “form of indenture or slavery”. She added (in a sentiment close to that of many other pro no-fault divorcers) that “the freedom to choose whether one is married or not married is absolutely core to our autonomy” before calling for the Government to “deal with this problem without delay”.
Throughout the reporting of the case, from Supreme Court judges to the family lawyer on the ground, the calls for parliament to change the law have been coming thick and fast.
However, there is still a hard core of commenters who see marriage as a binding, lifelong agreement that should be honoured and who firmly believe that making divorce easier will only serve to undermine and erode the institution further in our society. Their voices are also loud.
Owens v Owens has done nothing quantifiable to expedite change. As it stands, it has moved us no closer to divorce law reform.
It will undoubtedly have created more fire in the belly of petitioners who now know they will have to make their citations of unreasonable behaviour stick, but for anyone who is in the depths of an unhappy marriage, but without the stomach (or the money) for a protracted, acrimonious, mud-slinging, contested divorce, family law reform cannot come soon enough.
For more information on this subject, our blog “Finding Fault and No Contest – The Case for Matrimonial Law Reform” looks at the long-standing debate about the current system and explores two key pieces of research on the problems caused by the use of fault in the English and Welsh divorce system.