Joe Robertson is a family lawyer and Vice President of Hampshire Law Society. He is a member of the Society of Conservative Lawyers and a former Conservative election campaign manager.
Divorce law reform is back on the agenda, owing largely to the case of Hugh and Tini Owens which is due to be finally decided by the Supreme Court. Mrs Owens is seeking a divorce based on her husband’s alleged unreasonable behaviour. Mr Owens does not accept that he has been unreasonable, and the courts have so far agreed with him. The family court described his behaviour as, “the kind to be expected in marriage.” Unusually in this case, however, where many husbands might nevertheless understand that the marriage is over and agree to a separation divorce by consent, Mr Owens does not and will not. Instead, he hopes the parties still have a “few years to enjoy” together.
This is an unusual case and has coincided with, or perhaps prompted, calls for wider family law reform including from the judiciary. Lady Hale, President of the Supreme Court and the most senior judge in the land, has identified three areas ripe for reform: no-fault divorce, limiting spousal maintenance for life and financial protection for unmarried couples. A fringe panel event at 2017 Conservative Party Conference promoted no-fault divorces with much enthusiasm: however, the need for a new statutory divorce regime is being overstated and the dangers glossed over.
There are currently five statutory reasons why a divorce can be granted in England and Wales. At least three of them – arguably four – are already non-fault based: two years’ separation by consent, five years separation and desertion. The fourth – adultery – is also technically a question of fact rather than fault. The law provides no scope for the parties to argue why the adultery took place and whether it was reasonable. If adultery took place a divorce can be granted regardless of the circumstances that led to it.
This leaves unreasonable behaviour as the only statutory reason where one party must prove that their spouse acted in an “unreasonable” way which caused the irretrievable breakdown of the marriage. This is the basis for Mrs Owens petition.
The pro-reform campaigners complain that unreasonable behaviour petitions create animosity in otherwise amicable separations. But this ignores the widespread use of two years’ separation as the “amicable” route to divorce. Legally, spouses can be separated while living under the same roof, so the two-year separation period is often satisfied by the time a divorce petition is drafted. “Separated” can simply mean eating meals at different times, socialising in individual friendship groups and sleeping in separate beds. In essence, the concept of “separation” is a legal construct, and there are many married couples not contemplating divorce who would nevertheless be regarded as having already separated.
For amicable spouses who still cannot satisfy the two-year separation criteria and do not want to wait, the unreasonable behaviour petition can be used “amicably.” Owing to judicial development over 40 years, unreasonable behaviour can include such low-level misdemeanours as one party showing lack of love and affection, being repeatedly critical of the other and refusing to discuss the problems in the marriage. The English common law has allowed the courts to lower the bar to the extent that divorces under this ground have become far easier to obtain than when the last key legislation was passed in the 1970s, and often one party is content to admit their unreasonable behaviour to move the divorce process along. Indeed, incremental, proportionate judicial development has been the way family law has kept up to date with social change.
The reality is that most people who separate amicably but end in hostility do so because they cannot agree about money or children. As a matter of law, the reason for the breakdown in the marriage has no bearing on the final division of assets or care of the children and so the reasons stated for divorce in the petition quickly become an insignificant detail set against the back drop of the real fight over money, children or both.
If an additional no-fault ground for divorce was created by Parliament to help people like Mrs Owens, it could inadvertently become a tool of emotional abuse and undermine stable families. Pro-reform campaigners would like to see the petitioner being able to tick a box on a form requiring a divorce, and it be granted as an administrative function. There would be no opportunity for the respondent to be heard and no proper period for reflection. Coupled with the rapid advent of online courts – as enthusiastically set out by Lord Briggs at Southampton University recently – divorce could be the click of a mouse away at the whim of one party in the heat of an argument. A marriage created by consent but dissolved unilaterally would cease to be a legal union at all. It would be the ultimate symbol of a consumer-led throwaway society and vulnerable women and children will be most at risk if things go wrong.