The recent case of Owens v Owens highlighted the ongoing scandal afflicting thousands of couples who remain unable to divorce one another without one of them being blamed for the breakdown of the marriage.
There is only one ground for divorce in England and Wales – the marriage must have broken down irretrievably. This is usually not in dispute. The difficult part is proving that the marriage has broken down because one of five reasons must be given to the court. Once a couple has been separated for over two years, a divorce can be obtained on a ‘non-fault’ basis that they both wish for a divorce. Once they have been separated for five years, no consent is needed for a divorce. However, many couples are either unable or unwilling to wait for such a length of time before seeking a divorce. For those couples, obtaining a divorce means that one of them must be blamed. Unless one of them has committed adultery (and is willing to admit to doing so), the only option is to seek a divorce based upon allegations of unreasonable behaviour.
In order to satisfy the court that there has been unreasonable behaviour, a test must be met: the party being blamed must have behaved in such a way that the party seeking a divorce cannot reasonably be expected to live with them.
The law sets no boundaries over what unreasonable behaviour may include or involve. In practice, an application for a divorce (known as a petition) usually contains several allegations of unreasonable behaviour. Family lawyers are encouraged to keep allegations as mild as is possible to avoid causing unnecessary offence and making the process of divorce more acrimonious than it should be. In the vast majority of divorces, a consensus is agreed between the parties. Even if the party being blamed does not accept what is alleged about their behaviour, they invariably choose not to defend the allegations. There are usually two good reasons for this:
a) Both parties want the divorce and nothing would be gained by defend the allegations; and
b) Even if a party has doubts over whether the marriage has broken down, the legal costs involved in defending a divorce are extremely high and often beyond their financial resources.
In effect, modern divorce in England and Wales is often based on a large degree of collusion. Even if a person does not believe that they have behaved unreasonably, admitting that they have done so enables the divorce to progress and they can move on with their life. However, what happens when the person being blamed does not accept that they have behaved unreasonably and does not accept that the marriage has broken down?
In Owens v Owens the parties were aged 67 (the wife) and 79 (the husband). They married in 1978 and separated in February 2015. The wife started divorce proceedings in May 2015, based on allegations of the husband’s unreasonable behaviour. Her divorce petition raised four main allegations:
– The husband prioritised work over family/home life
– The husband failed to provide her with love and affection
– The husband suffered from mood swings
– The husband was overly critical of her
The husband responded by announcing an intention to defend the divorce. He denied the allegations and denied that the marriage had broken down irretrievably. After the court made further directions, the wife amended her divorce petition so it included 27 allegations in total. The husband responded to each of the allegations, continuing to deny them all. The court adjudicated upon the matter in January 2016. The Judge was unimpressed by the wife’s divorce petition and her allegations. He did not agree that the husband had behaved in such a way that the wife could not be reasonably expected to live with him:
“As it is, having heard both parties give evidence, I am satisfied that the wife has exaggerated the context and seriousness of the allegations to a significant extent. They are all at most minor altercations of a kind to be expected in a marriage. Some are not even that.”
The wife appealed against the court’s decision. Her appeal was heard by the Court of Appeal in March 2017.
The Court of Appeal
Whilst the Court of Appeal was sympathetic to the wife’s predicament, they could find no fault with the earlier decision of the court. The Judge had applied the law correctly to the facts and was quite entitled to reach the conclusion he did:
“…this court cannot overturn a decision of a trial judge who has applied the law correctly, made clear findings of fact that were open to him and provided adequate reasons, simply on the basis we dislike the consequence of his decision.”
In reaching that conclusion though, the Court of Appeal saw fit the highlight that their decision left the wife feeling:
“…unloved, isolated and alone, and locked into a loveless and desperately unhappy marriage which, as the judge correctly found, has, in fact if not in law, irretrievably broken down.”
The wife now faces an agonising wait until February 2020 before she can seek a divorce based on the fact that she and her husband have been separated for 5 years. Whether she, or her husband, will be alive at that point is open to some element of doubt. Can this deeply unsatisfactory state of affairs be considered fair? The Court of Appeal again highlighted (as they have done on numerous other occasions) that their functions cannot and do not extend to changing the laws of the land. The only way in which the wife’s situation could be changed would be if Parliament introduced wholescale reforms over divorce:
“…Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.”
The Court of Appeal produced a detailed analysis of the current charade that is modern divorce practice in England and Wales. There were nearly 114,000 divorce petitions from January 2016 to January 2017. Of that number, less than 1% of all divorce petitions saw a party actively defended the divorce in the manner of Mr Owens. Based on this evidence, it does really appear ludicrous that there is no process of ‘non-fault’ divorce in England and Wales unless the parties have been separated for at least 2 years.