Supreme Court to Rule on Landmark Unilateral Divorce Case
Supreme Court to Rule on Landmark Unilateral Divorce Case
A rare case of contested divorce has come all the way to the Supreme Court, sparking calls from family lawyers across the UK to state the need for legal reforms to allow “no-fault” divorces.
Tini Owens, 68, is seeking to divorce her 80-year-old husband of 40 years, Hugh, who wishes to remain married.
So far, the Family Court and Court of Appeal have both refused to grant Mrs. Owens a divorce, finding her reasoning – citing the option of “unreasonable behaviour” – as insufficient.
The first ruling in 2016 found that allegations of “unreasonable behaviour” – including “stinging remarks” and being “snapped at” were in fact examples of “minor altercations of a kind to be expected in marriage.”
The Court of Appeal decision in 2017 upheld this reasoning, but criticised the lack of a no-fault reasoning option for people seeking divorce under current law, with president of the Family Division Sir James Munby saying that this oversight led to “hypocrisy and lack of intellectual honesty.”
Now, the couple is awaiting a final decision from the Supreme Court, which could have major implications for the state of divorce law and freedom to unilaterally divorce in the UK.
The court is deliberating and has reserved its judgement on the case for a later date.
‘Modern social norms’ make case for no-fault divorce
The couple have lived separately since 2015, but current grounds for divorce require a couple to have lived apart for at least five years in order to be divorced in the event that one side does not wish to legally separate.
Mr. Owens’ lawyer has argued that allowing the Owens divorce to go through would in effect constitute a reform of the law to allow no-fault divorces, a “momentous step” more properly taken by Parliament, which “would amount to divorce on unilateral demand.”
“It is not a proper function of the Supreme Court to dilute of refashion a statute,” Mr. Owens’ lawyer reminded the court, underlining the fundamental principle that Parliament is sovereign in setting the law and that the court is bound to uphold its statutes.
Ms Owens’ legal team conversely countered that although reforms to allow no-fault divorce are currently under consideration by the government, any statutory changes to the law would come too late to provide justice for their client.
Her lawyers have beseeched the judges to reflect “current thinking and modern social norms” in their judgement.
Parliament considers reforms to divorce law
Justice secretary David Gauke is currently considering whether family law should be changed to allow unilateral divorces sooner than five years after physical separation, whilst president of the Supreme Court Baroness Hale recently spoke at a conference of family lawyers on the merits of reform to allow a no-fault divorce.
Lord Chancellor Gauke announced that he would “study the evidence for change” in February 2018, as “a number of respected figures have voiced their support for change” with great “strength of feeling.”
The current law – providing five grounds for divorce – was instated by the Matrimonial Causes Act 1973, and some lawyers have argued that relationship trends in society have changed considerably since then and that reform is needed to better reflect the reality of modern marriage.
The proposal has however attracted criticism from some MPs, with Sir Edward Leigh saying in Parliament last year that the introduction of a no-fault divorce would be a “regressive step” disadvantaging “the poorest and most vulnerable” in society.
According to Sir Edward, evidence from other countries’ models of faultless divorce links such unilateral divorce to “demonstrable negative impact on income and educational achievement, with increases in anti-social behaviour. Women become poorer, single mothers have to work longer hours, and children become more disadvantaged.”
Only one per cent of divorce cases in the UK are contested, with 42% of all marriages ending in divorce and the majority of separations occurring in the first ten years of marriage, according to the Office of National Statistics in 2017.
Family law expert, Charlotte Southworth, commented:
Reform in this area is long overdue. In practice, we are often tasked with drafting unreasonable behaviour petitions that will ‘get through’ without causing upset to the other party. The need to place blame is a hurdle that, in too many cases, creates conflict and divides parties who start with the intention of divorcing amicably, adding to the emotional and financial costs of the process.
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