Why does outdated divorce law need to change?

Yesterday, the matter of Owen v Owen [2017] EWCA Civ 182 was heard before the Supreme Court.

Mrs Owen issued a divorce petition citing that the marriage had irretrievably broken down on the ground “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. The current procedure for divorce, includes a section entitled “statement of case”. In this section the party issuing the petition must detail why he/she cannot live with their spouse. Mrs Owen detailed the following:

1. “The Respondent prioritised his work over home life and was often inflexible in making time available for the family, often missing family holidays and family events. This has caused the Petitioner much unhappiness and made her feel unloved.
2. During the latter years of the marriage the Respondent has not provided the Petitioner with love, attention or affection and was not supporting of her role as a homemaker and mother which has made the Petitioner feel unappreciated.
3. The Respondent suffers from mood swings which caused frequent arguments between the parties which were very distressing and hurtful for the Petitioner who has concluded that she can no longer continue to live with the Respondent.
4. The Respondent has been unpleasant and disparaging about the Petitioner both to her and to their family and friends. He speaks to her and about her in an unfortunate and critical and undermining manner. The Petitioner has felt upset and/or embarrassed by the Respondent’s behaviour towards her as well as in front of family and friends.
5. Because of the Respondent’s behaviour towards her, the Petitioner and the Respondent have until recently lived separate lives under the same roof for many years and have not shared a bedroom for several years. On 10 February 2015 the Petitioner moved into rented accommodation and the parties have been living separate and apart since that date.”

Mr Owen’s defended the divorce petition. Mrs Owen was then directed to file further particulars covering a longer period of time. Mr Owen filed an amended defence to these further particulars.

Judge Tolson at first instance described the particulars as “flimsy” and stated that “..wife has exaggerated the context and seriousness of the allegations…They are at most minor altercations of a kind to be expected in a marriage.” He concluded; “….I find no behaviour such that the wife cannot reasonably be expected to live with the husband.” The Judge promptly dismissed the petition. Many consider that the Judge reviewed the particulars subjectively as opposed to objectively. The determination of this decision has therefore led to Mrs Owen’s current appeal before the Supreme Court.

Yesterday, Resolution demonstrated against the current divorce laws, since one party must blame the other party for the divorce, or they have to wait two years, sometimes even five years to progress with the divorce. Resolution are lobbying for a ‘No Fault’ divorce regime.

When a relationship has broken down, the parties (and children) suffer huge emotional turmoil and the current divorce law fuels this suffering by dictating that unless you wait two years, you must apportion blame to the other party for their behaviour or even cite their adultery. This encourages further mud-slinging when emotions are already running high. Resolution want a party to be allowed to serve a notice to divorce and then wait six months before the divorce progresses, thus avoiding the need to blame the other party.

The route of the problem stems from the need to qualify how the relationship has broken down; the current law demands that further grounds are necessary and that they should be further particularised.

It is anticipated that the judgement in the matter in Owen will support the need for change.