Over the weekend family lawyers have been up in arms about the decision of the Court of Appeal not to allow Mrs Owens’ petition for divorce based on the behaviour of her husband. Twitter has been buzzing with the great and the good saying how out of touch the law of our country is, forcing people to stay in loveless marriages. Some have suggested that the case shows that there are now three people in every marriage – two spouses and the state – and that how our law has regressed a hundred years and is now thoroughly out of touch with modern values and the modern family.
Why, you might well ask, are lawyers so bothered about this? Wouldn’t we relish the opportunity to have a highly contentious divorce and an opportunity to make more money? Are we unknowingly campaigning for our own extinction?
The Owens case, a defended divorce trial, is unusual because it is so rare. Very few divorces will be contested to the point that there has to be a hearing when the allegations in the divorce petition are tested by a Judge. In the vast majority of cases, where one party has decided the marriage has broken down, the other party sooner or later accepts its demise and one of them will then look to bring the marriage to a legal conclusion.
Our current law is based on citing one of five different reasons for the marriage breaking down irretrievably. There are essentially two types of reason for divorce. Fault-based being adultery or behaviour and non-fault based being separation for a period of two years provided both parties then agree to a divorce or, if not, then a period of five years. That is the fate that now awaits Mrs Owens: she will not see a legal end to her marriage now until 2020.
If we look back to the difficulties faced by Henry VIII in dissolving his marriage to Catherine of Aragon it is fair to say that divorce law has progressed. A divorce can be concluded within about six months and neither party need attend court nor appear before a Judge. It can all be done by post. Further reforms to the process would see the task of formally dissolving the marriage taken away from Judges and given to administrators, making divorce even more of a box ticking form- filling process.
However there does need to be a point at which somebody in officialdom has to decide whether a couple can be divorced. Dissolving a marriage cannot be too easy – if it is, then what’s the point in getting married at all?
When I saw, however, what was said about Mrs Owen’s petition, that the particulars of her husband’s behaviour that she had complained of were “anodyne” and lacking any substance, I could not help but think that so many of the petitions I have drafted could have been regarded in exactly the same way. That was always my intention, not to create further acrimony by describing in long and lurid terms all the terrible things my client claimed their spouse had done during the marriage. It is the way we have been taught to prepare divorce petitions and is entirely in the spirit of the Resolution code of conduct and the Law Society’s family law protocol. At the same time, my heart always sinks when I read a divorce petition from the other party that doesn’t take this approach. These indicate a solicitor who really should have known better but did nothing to restrain the desire of their client to get everything off their chest. Sure, it may be cathartic, but do you really want everyone to see all those ugly accusations and complaints? An emotive divorce petition often sets the scene for a more contentious dispute over child arrangements and finances.
This judgement in Owens may have two immediate repercussions. Firstly it will encourage obstinate spouses who wish to frustrate their other half from divorcing them. There is a financial consequence to successfully resisting a divorce. It means that the court cannot make financial remedy (previously called ‘ancillary relief’) orders. There was some speculation that Mr Owens may have had a financial motive for resisting the divorce. I do not know if that is the case. Maybe he simply didn’t want to be divorced and didn’t think his wife truly wanted it either. One thing is certain: they hadn’t had the happiest of marriages and they will have to remain married for a few more years to come.
Secondly, and to try to avoid the situation that Mrs Owens faced, we may now see more divorce petitions drafted in stronger terms. The adjectives used in petitions will be more forthright and memories will be dredged for the worst possible things to put in the petition. Ultimately a behaviour petition is partly a subjective test. How did one person perceive the other’s behaviour? Quite often there was nobody else present when this behaviour took place as it probably occurred, or didn’t occur, in the privacy of the matrimonial home. Imaginations may now run wild.
The law is in need of reform. Sure, there is an obligation on the state not to make a divorce too easy. Marriage is a serious endeavour and should create a strong and stable bond between spouses. Exiting a marriage should not be a casual process but surely the time has come to evolve divorce law to the point where people do not need to be living apart for 5 years in a broken marriage, in the face of stubborn resistance from their other half, before they can bring that marriage to a dignified end? In theory it won’t take the UK that long to exit Europe and let’s not even get started on a discussion about whether all parties in that divorce are willing!
For my part, I would reduce the period of separation by agreement down to one year and during that period the discussions necessary to finalise arrangements for the children and the financial settlement could take place. More significantly, the period of separation without agreement to a divorce should be drastically reduced from five years down to I would say two years. I know other people will have different views on how long the period of separation should be and two years is just my arbitrary opinion though I have read support for this amongst other lawyers and it is also one of the reasons used for a divorce in Scotland.
There is a continuing lack of appetite for reforming divorce law at government level. However family lawyers and other campaigners for no fault divorce are not looking for a major overhaul of the entire family justice system. Reforms should be relatively simple and should greatly ease the pain and speed up the healing process for divorcing couples.