11:58, May 16 39 0 theguardian.com

2018-05-16 11:58:04
Shortcuts  Tini Owens is locked into an unhappy marriage – this is why we need ‘no fault’ divorce

In many ways, the case of Owens v Owens is not exceptional. The couple married in 1978, built a prosperous business together, bought property and had children. However, Tini, 66, and husband, Hugh, 78, have lived separately since 2015.

What is unusual is that Mrs Owens’s petition for a divorce has been contested by her husband – something that happens in just 1% of divorces. In this case, Mr Owens refutes the 27 allegations of his “unreasonable behaviour”. More unusual still, Mrs Owens’s divorce petition has been rejected by the high court and the court of appeal, where she was told that her husband’s behaviour was “to be expected in a marriage” and that “parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage”.

Mrs Owens, who describes herself as being “locked in” to her 40-year marriage, now seeks a ruling from the supreme court that she should not have to prove her husband’s “unreasonable behaviour” at all.

Under divorce law in England and Wales, you must be able to establish the marriage has irretrievably broken down by proving one of five facts. Three of these require a two-year separation if the divorce is uncontested, or five if it is contested, before a divorce may be granted.

The alternative is to prove that your spouse has committed adultery or their behaviour has been so unreasonable that the marriage has become untenable. More than half of marriages end this way – although 27% of plaintives later admit that the allegations of fault were not wholly true, but simply the fastest and simplest way out of a broken relationship.

Crucially, the adultery or unreasonable behaviour must be that of the partner you seek to divorce – not your own. This means that if one partner, such as Mr Owens, wishes to remain married, it is perfectly feasible for them to contest the divorce petition.

For some time, there have been calls for a “no fault” divorce, which would offer a sixth route out of a marriage and shift the focus to the wellbeing of children and financial settlements rather than proving blame.

Divorce can be a gruelling, painful experience and a “no fault” divorce would introduce much-needed kindness and dignity to a process that is demeaning and far removed from the nature of modern relationships. Perhaps the saddest moment in Owens v Owens is Tini Owens’s claim that her marriage made her feel “unloved, isolated and alone” – surely the very antithesis of how a marriage should make you feel.

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