Wendy Gouldingay

Wendy Gouldingay

Director at Gouldingays Family Law & Mediation

Wendy Gouldingay on The Owens Case

Why can’t a person bring an end to their marriage if they really, truly want to leave their husband or wife but can’t or don’t want to blame them for their marriage breaking down?

Last month, the Supreme Court decided that a woman who wants to leave her husband cannot be granted a divorce. Although her husband wishes to remain married to her, Tini Owens is deeply unhappy and, in the words of her solicitor, she “cannot move forward with her life”. After this week’s decision, she is still unable to end her marriage for another two years and this has ramifications for everyone else who might get divorced in future.

After Mrs Owens had an affair, she says that because of her husband’s subsequent behaviour toward her, it would be unreasonable to expect her to remain married to him. Her Husband, Hugh Owens does not consent to their marriage coming to an end and, having weighed the arguments, the Supreme Court decided that they could not allow Mrs Owens to divorce her husband. As a result, she must now wait until 2020 when she can legally be granted a divorce on the grounds of five years separation instead.

Handing down the judgments, the Supreme Court expressed regret at having to make the decision because their hands are tied by outdated laws which just about everyone disagrees with; that includes Resolution, a group of 6,500 family lawyers including myself; the counselling charity, Relate; and even the Marriage Foundation which normally resists any movement which could make divorce easier.

The Supreme Court President, Lady Hale has said she found the case “very troubling”, while another of the justices, Lord Wilson said he’d made the ruling “with reluctance”.

The reason why the the Supreme Court justices have had to make a ruling they seem to disagree with is that family law in England and Wales only allows divorces based on irretrievable breakdown of the marriage if the application is supported by one of three ‘fault’ grounds of one or two periods of separation (2 years plus the other party’s consent or 5 years where there is no consent).

This means that unless the person who applies for the divorce accuses their husband or wife of having engaged in adultery, desertion or they prove they have carried out unreasonable behaviour, then a couple can only divorce after two years of living separately if both consent to the divorce, or five years if not.

While this has prevented Mrs Owens from divorcing her husband, this system of fault-based divorce is causing problems and distress for countless others.

Even when a couple both agree to end their relationship, one of them has to ‘blame’ the other for the marriage breaking down. This can provoke disagreements which can damage what remains of a functional relationship between the two people, it can mean the most sensitive parts of people’s private lives are made public in court and it can mean divorces become bogged down in tit-for-tat exchanges.

In the 1990s, it looked like the no-fault divorce might finally be allowed in England and Wales when parliament passed the Family Law Act 1996 which would have introduced no-fault divorce law. Sadly, the law was never implemented. 22 years later, fault-based divorce law is still causing misery and even though popular support for the change has been building parliament has not legislated for the change.

In Scotland, family law has already changed to allow no-fault based divorce; people may get divorced after just one year of being separated if they both consent to the divorce, two years if one of them does not. This means that Scottish couples have a much easier alternative to blaming one or another. This change is the least that English law-makers could allow.

Now that such a prominent case has been taken all the way to the highest court in the land and with the judges who decided the case being so clear in their desire for change, I hope that the political pressure will build for the government to change the law this time. This country has a pressing timetable for other decisions at this time, but no-fault divorce should have been introduced long ago and with the advent of online divorce this would assist the smooth progression of matters through the court.

Whilst I’m not holding my breath, I was encouraged when I read the response from the Ministry of Justice, which said: “The current system of divorce creates unnecessary antagonism in an already difficult situation. We are already looking closely at possible reforms to the system”.

While law reform may still be some time away, if you are in the process of ending your marriage, you might read this and feel like there’s no easy way out: Let me assure you, that even with the fault-based system, it is certainly possible to end your marriage calmly and by agreement.

One of the most effective solutions to “the blame game” is to engage in mediation where you can agree with your husband or wife on the grounds for the divorce. Clearly, this method also requires communication, sensitivity and an even handed approach from both parties and it may just require the help of an expert family lawyer.