Worthing Newsletter – September 2018

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Supreme Court rules that an unhappy marriage is not grounds for divorce

In late July 2018, the Supreme Court handed down its decision in the case of Owens v Owens [2018] UKSC 41.  The verdict was inevitable and will re-ignite the debate over whether it is high time no-fault divorce is introduced in the UK.

The background to Owens v Owens has been extensively discussed.  The Supreme Court’s ruling means Tini Owens must wait until 2020 to petition her husband for divorce as it is only at this point that her husband’s consent will not be required.

The reasons for the Supreme Court’s decision

Ultimately, the court’s hands were tied.  Parliament has legislated under the Matrimonial Causes Act 1973 s.1(2)(b) that the only ground for divorce is an irretrievable breakdown of a marriage for one of the following reasons:

  • Adultery
  • Unreasonable behaviour
  • Desertion of at least two years
  • The parties have been separated for two years, and the respondent consents to a divorce
  • The parties have been separated for five years (no consent required)

Regardless of how the appeal judges, or indeed even the judge at first instance, felt about fault-based divorce itself, they were duty-bound to apply the law.

Why is divorce law in the UK seemingly so out-dated?

Refusing to allow a 68-year-old woman to become free from a spouse she clearly no longer loves and cannot bear to live with seems archaic and tyrannical.  Countries as culturally diverse as China, Australia, and even predominantly Catholic Spain have moved to a no-fault divorce system.

Why has the UK, which has brought in same-sex marriage and prides itself on being a progressive, family-friendly country, hung onto its Victorian-like divorce system?

Prior to the passing of the Matrimonial Causes Act 1857, the church ruled the roost when it came to marriage.  Unless you were Henry VIII (and even he had to wait seven years and create his own church), the only way out of a marriage was via an annulment, unless you were extremely rich.  But it must be remembered, back in the days of yore, most marriages ended around eleven years thanks to one spouse’s death (interestingly, the average length of a modern marriage prior to a divorce being granted is 11.5 years).

The 1857 Act opened up divorce to ordinary folk, provided you were a man.  Men were permitted to apply for divorce based on their wife’s adultery.  Women could divorce on the grounds of adultery too, if they could prove there was an aggravating factor, such as the husband had committed rape or incest.

In 1923, the Matrimonial Causes Act of the same year gave men and women equal rights to divorce on the grounds of adultery and from 1937, couples could also divorce on the grounds of cruelty, desertion, and incurable insanity.

The Matrimonial Causes Act 1973, which we are subject to today, was born out of the massive social changes ignited following the end of the Second World War.  Both the church and the government worried that divorce laws had become unfit for purpose.  The Divorce Reform Act 1969 provided the ground of ‘irretrievable breakdown’ and the associated five reasons (‘cruelty’ became the wider term of ‘unreasonable behaviour’).

This means current divorce law in England and Wales is almost 50 years old.  In that time, we have experienced the Women’s Revolution, the LGBT revolution, the digital, internet and social media revolution, and we are now heading rapidly towards the AI revolution.  Yet our society is still operating under a mish-mash of divorce laws that have barely changed in a century.

A push for change in the 1990s

The government has not been blind to the fact that English divorce law is about as fit for today’s society as bringing back the scold’s bridle or corporal punishment.  In the mid-1990s there was a major push to bring in no-fault divorce; however, so many changes and compromises were made to the proposal as it made its way through Parliament, it was eventually abandoned.

Today it would be difficult to find a family law solicitor who supports fault-based divorce.  Unless a couple want to wait two years (and that is only with consent) to leave their marriage, someone has to be blamed for the relationship failure.  Any lawyer will tell you this leads to at best negative feelings, at worst full-scale hatred between couples, leading to unnecessary pain and stress.  And against this backdrop, spouses are expected to work out matters involving finances and children peacefully between themselves.

The focus will now turn to the Private Member’s Bill introduced to the House of Lords by Baroness Butler-Sloss.  The Divorce (etc.) Law Reform Bill requires the government to re-examine the current rules around divorce and civil partnership dissolution and consider a no-fault system.

Never have so many struggling families so desperately needed a change of law that reflects the non-confrontational and respectful family law court system that is miles ahead of the current legislation.

Bennett Griffin are award-winning solicitors based in West Sussex with offices in central Worthing and Ferring.  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.ukfor 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.