When breaking up is hard to do: the case for divorce law reform

The process, however, has not been so straightforward, simple or inexpensive for Mrs Tini Owens, who at a recent Court of Appeal hearing lost her case to be divorced from her husband on the basis of his unreasonable behaviour. In this high-profile case, which has received significant press attention, Hugh Owens decided – regardless of the fact they had been separated since February 2015 – that the marriage had not broken down, or at least not on the basis of the facts set out by Mrs Owens. These included not providing her with love, attention and affection and there being frequent and distressing arguments.

Unusually, Mr Owens decided to defend the divorce proceedings and perhaps even more unusually, the judge in London agreed with him, despite the amended petition containing 27 specific allegations of the husband’s unreasonable behaviour. The judge complained that the petition was hopeless, was scraping the barrel and lacked beef. He thought that the wife had exaggerated the context and gravity of the husband’s behaviour and ordered substantial costs against her.

Regrettably, the Court of Appeal’s hands were tied because of the limitations in what it could do on appeal. Handing down his judgment, Sir James Munby asked himself the question as to whether the law was in a remotely satisfactory condition. He clearly thought not when he later noted that it was hypocritical when spouses and their family lawyers still have to use fault-based grounds to progress divorces.

It is against most specialist family lawyers’ code of conduct to be inflammatory and to encourage conflict and confrontation, but this essentially seems to be the outcome of the Owens’ case. Mrs Owens has now taken her divorce to the Supreme Court; it is to be hoped that reason will prevail, and that she will not have to wait until she is 70 years old and there has been a 5-year separation before she can divorce and sort out the finances.

Many other countries, including America and Australia, have no-fault divorce and it is surely time that England follows suit. As Neil Sedaka sang in 1975, breaking up is hard to do. And as this case proves, for some the current law can make it even harder.