The Supreme Court has now handed down its decision in the case of Owens v Owens. The appellant, Tini Owens has been told that her appeal has failed and therefore she cannot obtain a divorce against her husband on the ground that their marriage has irretrievably broken down due to his behaviour.
It is extremely rare for respondents in divorce proceedings to defend divorces. It is even rarer for those respondents to be successful in doing so. Indeed, the judgment states that recent academic research by the Nuffield Foundation could not find a single recent example of a respondent successfully defending a divorce, apart from Mr Owens.
Mrs Owens has therefore been extremely unlucky. As Lord Wilson explains in the judgment,
“The statement of case comprised five paragraphs. In them Mrs Owens alleged only that Mr Owens had prioritised his work over their life at home; that his treatment of her had lacked love or affection; that he had often been moody and argumentative; that he had disparaged her in front of others; and that as a result she had felt unhappy, unappreciated, upset and embarrassed and had over many years grown apart from him.”
Frankly, that should be more than enough to get divorced. Nowadays, solicitors are encouraged by both the Law Society and Resolution to draft behaviour divorce petitions that keep the allegations to the minimum necessary to obtain a divorce. I have successfully obtained divorces for a huge number of clients over the last two decades with divorce petitions which contain allegations as anodyne as these.
However, Mr Owens decided to defend the divorce. At a preliminary hearing, the court directed that Mrs Owens should file more details allegations of behaviour. However, at the trial, His Honour Judge Tolson QC found that:
“a) all 27 of the pleaded examples of behaviour were at best flimsy;
b) Mrs Owens had significantly exaggerated their context and seriousness;
c) Mr Owens was “somewhat old-school”;
d) Mrs Owens was more sensitive than most wives;
e) three of the examples on which Mr Marshall [Mrs Owens’ QC] had in particular relied (the judge making no reference to the fourth) were isolated incidents, not part of a persistent course of conduct on the part of Mr Owens;
f) Mrs Owens had cherry-picked one of those examples, which illustrated her approach;
g) the three examples scarcely merited “criticism” of Mr Owens; and
h) much the same could be said of the other 24 examples.”
This appears surprising, but of course, I have not had the opportunity listening to the evidence given at the trial.
Mrs Owens appealed to the Court of Appeal. The judgment of the Court of Appeal indicated an enormous amount of sympathy for Mrs Owens’ position, but it did not feel able to overturn the decision. Whatever it may have thought about Judge Tolson’s decision at the trial, it was within his discretion to come to that conclusion.
The Supreme Court this appears to have come to the same decision, albeit as it does not seem tremendously happy about it. Lord Wilson states:
“There is no denying that the appeal of Mrs Owens generates uneasy feelings: an uneasy feeling that the procedure now conventionally adopted for the almost summary despatch of a defended suit for divorce was inapt for a case which was said to depend on a remorseless course of authoritarian conduct and which was acknowledged to appear unconvincing if analysed only in terms of a few individual incidents; an uneasy feeling about the judge’s finding that the three incidents which he analysed were isolated in circumstances in which he had not received oral evidence of so many other pleaded incidents; and an uneasy feeling about his finding that Mrs Owens had significantly exaggerated her entire case in circumstances in which Mr Owens had not disputed much of what she said…
But uneasy feelings are of no consequence in this court, nor indeed in any other appellate court.”
Given the decision of the Court of Appeal, I suspect that the decision of the Supreme Court should not be surprising. However, it is worth noting the comments of Lady Hale, President of the Supreme Court who says:
“the correct disposal of this appeal would be to allow the appeal and send the case back to be tried again. However, in the appellant’s written case, it was argued that “it cannot be in the interests of the parties or in accordance with the overriding objective for there to be a further contested hearing”. … Orally, counsel viewed such a prospect with “dread”. It would place the appellant in an unenviable dilemma, given that, in February 2020, five years will have elapsed from their separation and, should the petitioner still wish to be divorced, it is difficult to see that there would be any obstacle standing in her way.
I am therefore reluctantly persuaded that this appeal should be dismissed.”
Mrs Owens therefore cannot obtain a divorce until February 2020 when she should have no difficulty in obtaining a divorce on the ground that the marriage has irretrievably broken down due to the fact of five years’ separation. In the meantime, she cannot resolve the financial aspect of her separation and eventual divorce unless she is able to come to terms with Mr Owens.
The Court of Appeal and the Supreme Court cannot be blamed for the difficult position in which Mrs Owens finds itself. The blame lies with the government and Parliament.
The current divorce laws are now 45 years old. They themselves are a refinement of divorce laws which were introduced in the 1960’s. The world has changed beyond all recognition since that time, but the means of obtaining a divorce has not kept up with the times. The law is extremely up-to-date when it comes to resolving the financial aspect of a divorce or dealing with arrangements for children. However, the central part of divorce – the divorce itself – is governed by laws that were introduced when Ted Heath was Prime Minister and Britain was entering into what would one day be known as the European Union.
Successive governments have failed to introduce no-fault divorce, even though this is commonplace in many other countries including the USA and Australia. The Conservative government attempted to introduce no-fault divorce proceedings in the Family Law Act 1996, but although the new law was passed by Parliament, it was abandoned without implementation by the Labour government in the late 1990’s. (To be fair, the legislation was pretty poor in quality).
Since then, no government has spent any real time and considering whether or not the law should be reformed. There have been attempts to pass private members bills in Parliament which would have introduce no-fault divorce, but these have foundered at an early stage. The current Lord Chancellor, David Gauke MP (who is a solicitor) appears to be sympathetic to the need to reform the law but we have not seen anything substantive yet. Although no-fault divorce was Conservative party policy in the 1990’s, it seems to have been forgotten by the current party when it wrote its manifesto for the last election. (The Labour Party included no-fault divorce in its 2017 manifesto).
Those in Parliament who oppose no-fault divorce such as Sir Edward Leigh MP usually argue that no-fault divorce would cause an increase in the divorce rate. However, academic research conducted by Professor Liz Trinder of the University of Exeter and by the Nuffield Foundation shows that there is no long-term increase in the divorce rate in countries where no-fault divorce has been introduced. (There is apparently a small spike when it is first introduced as people who could not get divorce before now take the opportunity to do so, but given how easy it is to get divorced in this country already, my view is that we will be unlikely to see this spike here).
No-fault divorce is not about making divorce easier. It is about decreasing the amount of hostility in the divorce. It is already easy to divorce, you just have to be nasty to each other to do it. Far too many couples waste time, energy and money arguing about who will divorce who and on what grounds. The reality is that this makes not the slightest bit of difference to the court’s eventual decision in relation to financial issues or any disputes about their children in the vast, vast majority of cases.
What fault-based divorce (or as Lady Hale would prefer us to call it – conduct based divorce) does do is to further poison relations between the parties, to make it more difficult for them to resolve financial or children issues, and more difficult for them to use alternatives to the court to resolve the disputes, such as mediation or collaborative process.
The vast majority of solicitors who specialise in family law think that no-fault divorce should be introduced. Inevitably, they are sometimes criticised as only being interested in lining their own pockets as more divorces will mean more fees. However, in many ways solicitors who want no-fault divorce could be viewed as turkeys voting for Christmas. No-fault divorce will lead to less conflict; less conflict means fewer court cases and lower fees.
The Supreme Court has done what it can. It can only apply the law, not make new laws. The baton has now been passed to Parliament. Lady Butler-Sloss (a peer, former President of the Family Division and the first female Lord Justice of Appeal) has recently introduced a private members bill in the House of Lords which if passed would introduce no fault divorce. It is high time that the government decided to support the bill.
25 July 2018