When Mrs Owens issued her divorce petition in May 2015 alleging that her husband’s behaviour was such that she could not “reasonably be expected to live with” him, it’s doubtful that she thought she’d still be married three years later let alone see her case go to the Supreme Court and be the catalyst for the most significant changes to divorce law in almost 50 years.
The Supreme Court decision in July 2018 that Mrs Owens was not entitled to a divorce despite an unhappy relationship epitomised all that is wrong with our existing divorce laws. Currently, divorcing couples must either spend a minimum of two years separated or one must blame the other for the marriage breaking down, relying on adultery or so-called unreasonable behaviour. Even if the couple mutually agree the relationship is over, they still have to apportion fault if they want to waive the two-year waiting period.
Unreasonable behaviour explained
At the centre of the Owens’ contested divorce was the interpretation of so-called unreasonable behaviour. Relying upon it involves the person bringing the divorce setting out a number of examples of their spouse’s behaviour that “proves” it is unreasonable for the couple to remain living together.
The phrase “unreasonable behaviour” does not actually appear in the law. However, this short-hand was resulting in judges feeling that they needed to find “bad behaviour” in order to grant a divorce based on it, rather than the focus being on the impact of the behaviour on the spouse seeking the divorce. Added to that were very real concerns among family lawyers that those seeking a divorce were relying on increasingly extreme examples of conduct, inflaming an already fraught situation and that fault-based divorces simply did not reflect the reality of relationship breakdown.
We were instructed by Resolution, an organisation of around 6,500 family justice professionals committed to the constructive resolution of family disputes. Nigel Shepherd is its immediate past chair and has been a vociferous campaigner for divorce reform for over two decades.
We successfully applied for Resolution to intervene in the Supreme Court proceedings. This was by no means a given – the other three organisations trying to do the same were refused. This meant that Resolution was given the opportunity to provide the court with written information about the practical problems that the current interpretation of the law was causing as well as providing an alternative interpretation of the law that would have allowed the court to grant Mrs Owens her divorce.
The catalyst for change?
The Supreme Court’s decision may not have been the one we were hoping for but it has been a catalyst for change. Having emphasised that they could only interpret rather than change the law, the Supreme Court called on Parliament to review whether our divorce laws really are fit for purpose in the 21st century.
And that is exactly what is happening now. In September 2018, the Ministry of Justice launched its consultation “Reform of the Legal Requirements for Divorce”. Proposals include replacing the current divorce system with a new, simplified notification process where one or possibly both spouses would notify the court of their intention to divorce. The consultation also seeks views on whether a spouse should be able to challenge a divorce and whether divorce should be allowed in the first year of marriage (currently, divorce is barred in the first year).
Reform is long overdue. It is not about making divorce easy or making marriage disposable. Reform is about making divorce a more dignified process that is a little bit kinder to the families involved.