Is It Right That A Divorce Can Be Defended?

Last month, the Supreme Court commenced its hearing on the case of Owens v Owens.  This matter has received a great deal of media coverage as it has highlighted the need for a change in divorce law.

Resolution, an organisation which our family law team belongs to, was granted exclusive permission to intervene in the case on behalf of Mrs Owens, whose husband is refusing her a divorce.

A recent survey undertaken by Resolution saw 9 out of 10 professionals agreeing the current law makes it harder for them to reduce conflict and confrontation between clients and their ex-partners.

What is the case of Owens v Owen’s about?

Mr and Mrs Owens had been married for 37 years.  During the marriage, they had built up moderate wealth thanks to a business which turned over around £5 million.  They have two children.

In 2012, Mrs Owens had an affair; a fact she admitted to in court.  She moved out of the family home and petitioned for divorce on the grounds of unreasonable behaviour, claiming the marriage was “loveless and argumentative”.  She gave examples of Mr Owens prioritising work over family, making hurtful and critical remarks about her to their family and friends, berating her in front of her housekeeper, and not talking to her during a meal.

Unusually, Mr Owens decided to defend the divorce.  He stated he forgave his wife for the affair and wanted them to live out the remaining years of their life together.

When His Honour Justice Tolson QC handed down his decision, it sent shockwaves through the family law fraternity and the media.  He stated that the examples of ‘unreasonable behaviour’ given by Mrs Owen’s in her divorce petition ‘exaggerated’ and ‘at best flimsy’, stating they were ‘minor altercations of a kind to be expected in a marriage’ and ‘an exercise in scraping the barrel’.  He also declared Mrs Owens was ‘more sensitive than most wives’ and that she had ‘exaggerated the context and seriousness of the allegations to a significant degree’.

The case was referred to the Court of Appeal, and the appeal was dismissed.  Although it sounded cold, heartless, and almost archaic, the judges had to make their ruling on the law, not on moral or sympathetic grounds, but within the parameters which the law allowed.  In a statement which goes completely against our modern culture, the court held that even a wretchedly unhappy marriage was not grounds for divorce in English law.

The court stated it was obliged to look at the subjective elements of the petition on objective grounds.  President Munby said, in delivering his judgment:

“What the authorities show is that, in a case such as this, the court has to evaluate what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband, (iii) in the light of all the circumstances and (iv) having regard to the cumulative effect of all the respondent’s conduct. The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent?”

The fact Justice Toulson had only examined a handful of the allegations of unreasonable behaviour rather than examine the whole 27 was entirely reasonable and it would have given him enough to get a sense of how serious the allegations of ‘unreasonable behaviour’ were.

Will this case be the catalyst to bring about no-fault divorce?

Many are hoping the Supreme Court decision will force the government’s hand to abolish no-fault divorce or dissolution of civil partnerships.  However, there are some members of Parliament who are against the introduction of no-fault divorce.  A House of Commons briefing paper , published in December 2017, emphasised the fact that Sir Edward Leigh (Conservative) expressed reservations about the introduction of no-fault divorce during the first reading of the No Fault Divorce Bill 2015-16.  Although he did not vote down the bill, he stated:

“Of course, I would like to make the moral case for marriage and for a lifelong commitment to children”, but pointed to evidence from other countries which, he said, showed the wider consequences such legislation might have.

The social researchers have done their job and the evidence is now available. If this were merely a matter of allowing a few cases of obvious irrevocable breakdown to be dealt with more quickly, cheaply and less destructively, very few people would oppose the idea. It would be a common-sense thing to do. But, while that is what my hon. Friend seeks, very honourably, to achieve, that is not the sole impact of no-fault divorce. Unfortunately, all the available evidence points to the introduction of no-fault divorce having a large, widespread and demonstrable effect on the societies in which it has been introduced. That is true across the spectrum of developed nations, from Canada and certain American states to Sweden and elsewhere”.

Sir Edward Leigh also spoke of other studies which noted an increase in the divorce rate when no-fault divorce was introduced:

“Scholars have noted similar results in US states correlating to when states introduced no-fault divorce. The first significant study of no-fault divorce was published in 1986, and all the further major published papers since then have concluded that the divorce rate increased at the same time as the introduction of no-fault divorce. Do we want to increase the divorce rate? We know that the preponderance of evidence suggests that we will end up having more divorces and a higher divorce rate if no-fault divorce is brought in”.

Although this may seem a persuasive argument against no-fault divorce, we must examine the introduction of the concept in line with other social developments at the time.  For example, Sir Edward cited Canada, as an example where divorce rates leapt after no-fault divorce was introduced in 1968.  But this was a time when society itself was experiencing enormous change.  Women were demanding equal rights, the social stigma surrounding divorce was considered archaic and more women were gaining financial independence.  No-fault divorce was introduced in America in 1970 and Australia brought it in in 1975, around the same time societal norms were changing beyond recognition.  Given the context of the times in examples referred to by Sir Edward, his argument falls rather flat.

Crossbencher, Baroness Deech also has reservations regarding no-fault divorce, because as she sees it, such a mechanism already exists, in terms of waiting two to five years post-separation.  Therefore, she stated the main advantage for the Bill relates to speeding up the process.

Baroness Deech argued that reform should instead be directed towards financial provision law:

“I say [no-fault divorce] reform would bring little benefit because the real harm in the divorce process is, first, to the children (who will probably be unaware of the legal grounds, but most affected by the actual separation of their parents), and second, the ghastly state of our financial provision law. It is so expensive in legal costs that it can eat up the assets of all but the richest, and so confrontational that it makes the substantive divorce mild by comparison. That is where reform should be directed. I suggest that all that is needed by way of substantive divorce reform of the “fault” grounds, is a slowing up, e.g. no decree absolute for 12 months from the service of the petition”.

Although Baroness Deech’s comments are considered with the greatest respect, it is arguable that fault-based divorce is what often prevents couples from negotiating financial settlements between themselves, thereby significantly reducing the legal cost of divorce.  It is very difficult to sit down amicably to discuss a financial settlement and childcare arrangements with a person who is publicly accusing you of unreasonable behaviour.

We will keep you updated on this case and the government’s progress towards no-fault divorce.

Bennett Griffin are award-winning Solicitors based in West Sussex. From our office in central Worthing our experienced and specialist Solicitors offer a comprehensive service and will work with you in an honest, considered, and practical manner. Our family law team can advise and represent you in matters regarding divorce.  Please contact us on 01903 229 999 or by email at info@bennett-griffin.co.uk for more information.

The information contained in this article is for general guidance only and is not intended to be legal advice. Professional advice should always be taken on the application of the law in any particular situation.