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Calls for divorce law reform as women told she has to stay in loveless marriage

There have been renewed calls for the reform of the divorce law system after a woman was told by the Supreme Court that she must remain in what she claims is a ‘loveless and desperately unhappy marriage’.

Tini Owens, 68, wanted to be allowed to divorce her husband of 40 years, Hugh, 80, but he wants to stay married and without his consent, or the court’s agreement, the couple must remain, in Mrs Owens’ words, ‘locked into’ marriage.

Under current law in England and Wales, the only way to get divorced without your spouse’s agreement is to live apart for five years meaning that as a result of the Supreme Court’s ruling, Mrs Owens has to stay married until 2020.

Troubling case

The Supreme Court unanimously rejected Mrs Owens’ appeal after looking at opposing legal arguments but said it did so ‘with reluctance’.

Lord Wilson said it was a ‘question for Parliament’ in light of this case ‘whether the law still governing entitlement to divorce remains satisfactory’.

Lady Hale said she found the case ‘very troubling’ but that it was not for the judges to ‘change the law laid down by Parliament’ but to ‘interpret and apply’ it. Lord Mance also said he shared ‘uneasy feelings’.

Background

Mrs Owens, who had an affair several years ago, moved out of the family home in February 2015 and said she never wanted to go back to her husband, although he refused to agree to a divorce.

She said the marriage had broken down irretrievably and that Mr Owens behaved so unreasonably she couldn’t be expected to live with him. He denied this and said if their marriage had irretrievably broken down it was because of her affair or because she was ‘bored’.

He also said he had forgiven her and believed they ‘still have a few years of old age together’.

Following on from hearings at the High Court and Court of Appeal, which both rejected Mrs Owens’ petition for divorce, the Supreme Court upheld the view that she did not have proper grounds for ending the marriage, a decision said to have left her devastated and unable to move on with her life.

Current system

Divorcing couples must currently meet one of five ‘standards’ to prove a marriage has irretrievably broken down – adultery; unreasonable behaviour; desertion after two years; two years separation (if both parties agree to the divorce) and five years separation if they don’t agree.

This particular case is unusual in that most divorces are uncontested, meaning agreed by both parties, but because Mr Owens won’t agree to the divorce, Mrs Owens has gone to court to cite numerous allegations of unreasonable behaviour on the part of her husband.

However, these have been rejected every time meaning she must wait until 2020 to be granted a divorce under the five year separation rule.

Unreasonable behaviour is often given as a reason for divorce even in amicable splits as it allows proceedings to begin without having to wait for two years.

Many advocates of ‘no fault’ divorce believe this is cruel and unfair and highlights the way couples are forced to apportion blame at an already difficult, stressful and emotional time often causing unnecessary further upset and acrimony.

End the blame game

Resolution, an organisation representing about 6,500 lawyers in England and Wales, wants a new system under which one or both spouses can give notice that their marriage has broken down. Then, after six months, if they haven’t changed their mind, a ‘no fault’ divorce would be granted.

A recent Resolution survey of professionals found that 9 out of 10 feel the current system makes it harder for them to reduce conflict and confrontation between clients and their ex-partners.

In 2016, more than half of all divorce petitions were submitted citing adultery or unreasonable behaviour meaning more than 60,000 people pointed the finger of blame at their ex for the relationship’s breakdown. Resolution believes many did not have to do this.

Nigel Shepherd, the former chair of Resolution, said: “Our current laws can often create unnecessary conflict in divorce, forcing many couples to blame each other when there is no real need – other than a legal requirement – to do so. This conflict is detrimental to the couples themselves, and, crucially, any children they may have.

“We want to see a system fit for the modern age, where separating couples are treated like responsible adults, and are allowed to resolve their differences as amicably as possible without having to sling mud at each other. It is ridiculous that Mrs Owens has to come to the highest court in the land in order to escape a loveless marriage. The Government needs to grasp the nettle and end the blame game.”

There is no doubt the Government will now be under pressure to look at reform.

According to reports, the Ministry of Justice said after the ruling: “The current system of divorce creates unnecessary antagonism in an already difficult situation.

“We are already looking closely at possible reforms to the system.”

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