15:46, July 27 87 0 theguardian.com

2018-07-27 15:46:04
The Guardian view on ending marriages: stop the blame game

In Tolstoy’s novel Anna Karenina, a lawyer explains the realities of Russian divorce law to Anna’s proud but humiliated husband Alexei Karenin. “Two people cannot go on living together – here you have a fact,” the lawyer says. “And if both are agreed about it, the details and formalities become a matter of no importance. And at the same time it is the simplest and surest method.”

There are many differences between Russian divorce law under the tsars and divorce law in a 21st-century democracy in an era of sexual equality. But Tolstoy’s lawyer could have been broadly describing the situation that still exists in most cases in England and Wales to this day. There are more than 100,000 divorces every year. In most of them the couples agree to end their marriage on one of the legally specified grounds. This remains the simplest and surest method.

But there are exceptions. Divorce is contested in less than 1% of all cases, and even here a decree is normally quickly granted. In 2016 there were only 17 hearings where a couple went to court to argue whether their marriage should continue. The case of Tini and Hugh Owens is one of them – indeed it is the only recent legally reported case of its kind. Mrs Owens wanted a divorce. Mr Owens did not. The court accepted that the marriage had broken down but ruled that Mrs Owens’ reasons for wanting to divorce were “scraping the barrel”. Mrs Owens appealed. This week, the supreme court dismissed her case. She must now remain married until 2020, when the couple will have been separated for five years, as the English law requires.

The supreme court gave its view with explicit reluctance – as well it might, given that the breakdown of a marriage, which had occurred in this case, is the only legal ground for a divorce. The appeal court had earlier reached a similar conclusion “with no enthusiasm whatsoever”. Lord Wilson, who wrote the supreme court judgment, confessed to “uneasy feelings”. Lady Hale judged it “a very troubling case”. Unusually, the supreme court added a note that parliament “may wish to consider” replacing a law that stops Mrs Owens getting the divorce she seeks. In judge-speak, that means the law is an ass and ought to be changed.

Parliament has been round this course before. In 1995-96, the Major government introduced a family law bill which allowed a form of “no-fault divorce”. It was opposed by Conservative backbenchers who alleged it did not sufficiently defend marriage. Many amendments were made. In 2001, following pilot schemes, the Labour government decided to repeal the no-fault law, which had never come into force.

Because the Owens case is untypical, it may seem a low priority to look at divorce law in England and Wales as a whole. But this would be a false conclusion. The law on divorce has got itself into a bad place more widely. It needs sensible and constructive rescuing, with a simpler and more workable system than the abortive 1995-96 law, and learning from other jurisdictions. To do this is not to undermine marriage.

Recent Nuffield Foundation research led by Liz Trinder of Exeter University argues that most of the problems in divorce courts are generated by the law itself; as a result the courts then provide “ineffective, unhelpful and potentially unfair” solutions. Most defended divorces are not attempts to save the relationship but quarrels about who should be blamed. Defended cases cost time, money and emotion that few can face, so settlements often reflect the relative bargaining position of the parties, not the truth of what has occurred.

This points towards reviving the no-fault approach, including Scotland’s 2006 reform in which separation periods are shorter than in England and Wales. Last week the doyenne of family lawyers, Baroness Butler-Sloss, published a draft bill which would require the government to review the law, on the basis that reform is needed. The logic of this is irresistible, The Owens case has produced an absurdity to which Tolstoy’s lawyer had the answer: “Two people cannot go on living together – here you have a fact.” The law should reflect that fact, and both the justice secretary and parliament should now face it.

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