Spouses, Separation and More Momentum for ‘No-Fault’ Divorces 

Published on 30 July, 2018 | James Brown

Marriage is a partnership which depends on both those involved being committed to making it work, regardless of their respective contributions.

Over the course of their time together, many spouses experience ups and downs.

Problems with jobs, children and finances can all, in fact, give rise to doubts about whether a relationship will survive into the long-term.

A considerable proportion will do their best to resolve those difficulties and keep a marriage alive.

However, when one or other spouse comes to the conclusion that it is broken beyond repair, it is generally the point at which they petition for divorce.

As in any other partnership, of course, there can be a difference of opinion or perspective. Just because one person is unhappy doesn’t necessarily mean that their other half is also prepared to throw in the towel.

That issue has been central to a case decided upon by the Supreme Court only this week.

Thirty years after Tini Owens married her mushroom farmer husband, Hugh, she was seeking to end their marriage on the grounds that she felt “locked in a loveless marriage”.

She had petitioned for divorce in 2015 and moved out of the family home complaining that his behaviour towards her had left her feeling “unhappy, unappreciated, upset and embarrassed”.

Mr Owens, though, denied that the couple’s marriage had broken down and refused to agree to divorce.

Five senior judges have now agreed with him, insisting that if Mrs Owens is adamant her marriage is effectively over, she should wait a further two years until the point at which she can divorce her husband without needing his agreement to do so (https://www.supremecourt.uk/cases/docs/uksc-2017-0077-judgment.pdf).

The judges noted how spouses’ perception of how well or otherwise their marriage is functioning can differ greatly, especially if they’re unhappy (“behaviour which the other spouse may consider trivial in the context of a happy marriage may bear more heavily upon a spouse trapped in an unhappy marriage”).

Their decision, though, has drawn fresh attention to a campaign advanced by the likes of The Times newspaper for Parliament to consider revisions to current divorce law in order to avoid disputes like that of Mr and Mrs Owens having to be resolved in court.

Indeed, the judges suggested that “Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce”.

I believe that the situation in which the Supreme Court President, Lady Hale, and her colleagues found themselves (“our role is only to interpret and apply the law that Parliament has given us”, she remarked) meant that the outcome of this case was something of a foregone conclusion.

Nevertheless, the case once more illustrates the tension between divorce law which has been in force since the early 1970s and societal changes in the four decades since.

The last five years alone suggest that Mrs Owens’ circumstances may not be unique.

Figures published by the Office for National Statistics (ONS) reveal that the number of spouses either choosing to wait or having to wait five years before separation without the consent of a husband or wife has increased by 26 per cent since 2011 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2016).

By comparison, the number of marriages ended on the grounds of a spouse’s unreasonable behaviour have risen by only 2.6 per cent over the same period.

We are arguably at what might be viewed as a crossroads for family law in England and Wales.

Pressure is building not only for so-called ‘no-fault’ divorce (or “conduct-based” divorce, according to Lady Hale’s preferred description) but for recognition of the rights of a growing number of cohabitees when their relationships come to an end.

Resolving the issue will not be easy. The consequences of failing to put in place a solution which lessens the potential for conflict, however, are possibly greater.