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Calls for reform to the UK's divorce system

View profile for Natalie Carolan
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The end of Brangelina was one of a string of events from last year that left everyone in Hollywood feeling off kilter. And now Bennifer have officially filed for divorce too. Bennifer can rest easy. Since 1970, all divorces in California have been no-fault divorces, meaning that the spouse asking for a divorce does not have to prove that the other spouse did something wrong.

In the United Kingdom, the divorce system is partly fault-based. There is only one ground for divorce, which is that the marriage has irretrievably broken down. For those who are not familiar with family law terms, the person who starts divorce proceedings is known as the petitioner and the other spouse is known as the respondent. To satisfy the Court that the marriage has irretrievably broken down, the petitioner must prove one of five facts, namely that:-

  • The respondent has committed adultery and the petitioner cannot reasonably be expected to live with the respondent.
  • The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
  • The respondent has deserted the petitioner for a continuous period of at least two years.
  • The parties have lived apart for two years and the respondent agrees to the divorce proceedings.
  • The parties have lived apart for five years (whether or not the respondent agrees to the divorce proceedings).

Many petitioners file for divorce on the basis of the respondent spouse’s unreasonable behaviour. For those itching to divorce their spouse, it’s the only fact (other than adultery) where a divorce can be sought immediately, without waiting for a period of at least two years. 

In order to rely upon the fact of unreasonable behaviour, the petitioner has to lay blame at the foot of the respondent. Family lawyers have to draft divorce petitions based on unreasonable behaviour in such a way that the judge reviewing the petition is satisfied that the marriage has broken down, but tensions between the parties are not further inflamed by the content of the petition. The difficulties in this balancing exercise are illustrated by the recent case of Owens v Owens [2017] EWCA Civ 182.

Mrs Owens petitioned for divorce on the basis that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. Mrs Owens pleaded 27 allegations of unreasonable behaviour in total. Her pleadings included allegations that Mr Owens had prioritised his work over his home life, and did not provide Mrs Owens with love, attention or affection. She also referred to three separate incidents in which the parties had argued in public. Many family lawyers would regard Mrs Owens’ allegations as fairly common complaints of unreasonable behaviour, often seen pleaded in divorce petitions. If Mrs Owens’ divorce proceedings had been undefended, it is highly likely that her pleadings would have sufficed.

However, Mr Owens took the relatively unusual step of defending the divorce proceedings. The case was heard by HHJ Tolson QC on 15 January 2016. HHJ Tolson QC considered a sample of Mrs Owens’ allegations and determined that Mr Owens had not behaved in such a way that Mrs Owens could not reasonably be expected to live with him. HHJ Tolson QC said that “this case might have found favour if I had been satisfied that the incidents were examples of a consistent and persistent course of conduct”. He described Mr Owens as “somewhat old-school” and Mrs Owens as “more sensitive than most wives”. Unsurprisingly, the judgment was met with incredulity by both the press and the wider public.

Mrs Owens appealed on the basis that HHJ Tolson QC adopted a flawed process. She also raised arguments in relation to Articles 8 and 12 of the European Convention of Human Rights (which relate to the right to respect for private and family life and the right to marry). 

The Court of Appeal determined that the process adopted by HHJ Tolson QC was entirely justified and that there was no right to a divorce under the European Convention of Human Rights. The appeal was dismissed.

The Court of Appeal commented “we cannot interfere with Judge Tolson’s decision to refuse the wife the decree of divorce she sought… Parliament has decreed that is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people say it should be. Such is the law which it is our duty to apply”.  

The Court of Appeal’s judgment confirmed that the test for unreasonable behaviour is part-objective and part-subjective in that “the Court has to evaluate what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband, (iii) in the light of all of the circumstances and (iv) having regard to the cumulative effect of all the respondent’s conduct. The Court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent?”

Given the test set out, it is difficult to understand the decision of either Court. Mrs Owens pleaded 27 allegations of unreasonable behaviour in her divorce petition. Neither Court considered the cumulative impact of all 27 allegations on Mrs Owens, a wife who HHJ Tolson QC found to be “more sensitive than most”.

There is now a real risk that as a result of this judgment, a petitioner will feel compelled to exaggerate their spouse’s behaviour so as to persuade a judge that their marriage has broken down.

I cannot help but feel that Mrs Owens’ case is being used by the judiciary to illustrate its dissatisfaction with the current state of law. Many have long campaigned for a no-fault divorce system to be introduced in the United Kingdom. It is notable that Mrs Owens’ appeal was heard one day after Lord Keen of Elie, the Ministry of Justice spokesperson in the House of Lords, confirmed that the Government has no plans to reform divorce law, although it is considering further reforms to the family justice system.

The Court of Appeal made reference to Lord Keen’s comments within its judgment, no doubt to highlight its dissatisfaction with the Government’s stance.

Mrs Owens has indicated that she intends to seek permission to appeal to the Supreme Court. Meanwhile, the press and the public are calling the Government to reform the United Kingdom’s archaic divorce system. We are all eagerly watching and waiting to see what happens next.

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