It's 2018 And You Still Don't Have A Right To Divorce

It’s 2018 And You Still Don’t Automatically Have A Right To Get Divorced From A Loveless Marriage

Many of us aspire to be married one day. The ability to get married is something specifically protected by our human rights. But sometimes, for one reason or another, it doesn’t work out. In 2016 there were more than 100,000 divorces in England and Wales. However, getting a divorce isn’t always that easy.

It’s an issue that not many of us will have given much thought to, but the ability to get divorced has been propelled into the public eye this week after 68-year-old Tini Owens was denied a divorce from her “loveless” and “broken down” marriage by the UK’s highest court.

‘The Majority Invite Parliament to Consider Replacing the Law’

Supreme Court President Lady Hale. Image Credit: Supreme Court

Mrs Owens has been married for 40 years with two adult children, but said she’d been contemplating a divorce since 2012, when she consulted solicitors on what to do next. However, crucially, it wasn’t until 2015 that she moved out of the home she and her husband shared together.

She formally began the divorce process at the same time, claiming the marriage had broken down “irretrievably” and that her husband behaved in such a way that she couldn’t “reasonably be expected to live with him”.

This is where things start to get a bit complicated – if the two people within a marriage haven’t been living apart for a significant amount of time, then the only other grounds for divorce rest on things which place the other person in the marriage at fault – adultery, unreasonable behaviour and desertion.

While Mrs Owens drafted her petition to divorce in language which tried to be as inoffensive as possible, when it was served to Mr Owens he decided to fight the divorce, arguing the marriage had been “largely successful”.

The judge found the marriage had broken down, but that Mrs Owens’ examples were flimsy and exaggerated, and were isolated incidents.

Previous Rulings on the Case Dismissed Her Appeal

Previous courts found that her examples of his bad behaviour – needed to grant a divorce – were “flimsy” and “isolated incidents”, with the case eventually making it’s way to the Supreme Court.

However, the Supreme Court has now also reluctantly rejected her appeal, saying “the majority invite Parliament to consider replacing a law which denies Mrs Owens a divorce in the present circumstances.”

Effectively, Ms Owens must now remain married until 2020 – at which point she will have lived apart from her husband for five years, meaning she can finally get a divorce without his consent, or having to argue he is at fault.

‘No Fault Divorces’

weddings don't always end well - some end in divorceImage Credit: Wu Jianxiong / Unsplash

The right to marry is specifically protected as a human right. Article 12 of the Human Rights Convention (which is law in the UK through the Human Rights Act 1998) means we all have the right to marry who we like, ensures trans people are able to marry people of the opposite gender, and allows us to start a family.

However, while the right to marry touches on divorce, it doesn’t say anything about this as a right. A case in 1997 found that there should be no restrictions on divorced people getting remarried, but there is no set guidance on how people should get divorced.

They are shocked to learn that unless they have been separated for at least two years, one of them will need to accuse the other of being at fault to end their marriage. That is where things can begin to go awry.

Jo Edwards, head of Family at Foresters LLP

The situation in the UK, where people are essentially forced to attribute blame in order to get divorced, has come under much criticism – with some people calling for so-called ‘no fault divorces’, whereby people can end unsuccessful marriages without claiming one partner has done anything wrong.

‘In A Modern Society, How Can This Be Right?’

a map of the globe

Image Credit: NASA / Unsplash

Writing in the Guardian, Jo Edwards, head of family at the London law firm Forsters LLP, says a change is the law is vital to stop the “damage” she has personally observed.

“In my practice, I see firsthand the damage that a fault-based system causes to families,” she explains. “Few people take lightly the decision to end their marriage; they think about it long and hard, invariably having attended counselling. They are shocked to learn that unless they have been separated for at least two years, one of them will need to accuse the other of being at fault to end their marriage.”

“That is where things can begin to go awry; tempers fray when a spouse commits to paper (because the law requires them to do so) the reasons why the other is at fault for the end of the marriage, and intentions to keep things amicable go out the window. Children are the inevitable victims.”

In a modern society, how can it be right for a woman to be forced to remain married to a man when three courts of law have all accepted that the marriage is loveless and at an end?

Philip Barnsley, Partner and Head of the Family team at Higgs & Sons

Similarly, Philip Barnsley, a partner and Head of the Family team at Higgs & Sons, told RightsInfo this was a “clear example” of why the law should be changed.

“In a modern society, how can it be right for a woman to be forced to remain married to a man when three courts of law have all accepted that the marriage is loveless and at an end?

“This ridiculous blame culture that exists within our outdated divorce laws only serves to increase acrimony at a time when families need calm words and voices in their lives – especially when there are children involved.

“It surely has to be time for England and Wales to move in line with many other countries around the world including Australia, the USA and Spain in allowing divorce without blame,” he added.

However, for Tini Owens and other campaigners, today was not the day they hoped for. Following the judgement, her solicitor said that Tini was “devastated” and “cannot move forward with her life”.

Lady Hale, president of the Supreme Court, said while she found the case “very troubling” it was not for judges to “change the law”. The reality is that the law can only be changed by Parliament – but it doesn’t appear that change is coming any time soon.

Featured Image Credit: Unsplash

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About the Author

Jem Collins

Strategic Impact Director
Jem is the Strategic Impact Director for RightsInfo, working on increasing our reach across the UK and measuring our impact. Previously she was the News and Social Media Editor. She is also passionate about helping young people into the media and runs Journo Resources, a start-up which helps young people into the media, as well as serving as a trustee of the Student Publication Association. She is also one of the co-founders of The Second Source, a group to help end harassment in the media. Email Jem View all posts by Jem Collins.
It’s 2018 And You Still Don’t Automatically Have A Right To Get Divorced From A Loveless Marriage
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