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No-fault divorce gets the Supreme Court treatment

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Lady Hale, who’s hearing today’s case, is a vocal supporter of divorce law reform

© UK Supreme Court / Kevin Leighton

The Supreme Court will today hear arguments from a 67-year-old woman desperate to break off her marriage, but can’t because of divorce laws.

Tini Owens has been married to hubby Hugh for 40 years, but during this time, she claims, he prioritised work over home life, made her feel unappreciated and suffered mood swings that caused “distressing” and “frequent” arguments. They’ve lived apart since February 2015.

Tini’s tried to obtain a divorce but, so far, hasn’t been successful. This is because under the Matrimonial Causes Act 1973 you need to prove fault, which can take the form of adultery, desertion or unreasonable behaviour. Tini cited the latter, unreasonable behaviour, in her divorce petition.

But judge Robin Tolson QC didn’t think her allegations against Hugh met the requisite threshold: he wasn’t sufficiently unreasonable. Sir James Munby, who sat alongside Lady Justice Hallett and Lady Justice Macur on appeal, said:

“Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be. Such is the law which it is our duty to apply.”

Parties can also seek out a divorce if they have been separated for two years and both sides agree to the divorce. Hugh, the respondent, is not willing to consent.

Tini’s case has so far lost in the Central Family Court and the Court of Appeal, but there’s clearly momentum behind divorce law reform of late so that an unhappy wife or husband can get a divorce without having to prove “fault” in their other marital half.

Where the justices will be sitting today

In an interview with Legal Cheek in the wake of the Court of Appeal judgment, Tini’s lawyer, Philip Marshall QC, told us:

“Many people think the time has come for no-fault divorces. I would certainly support this. I hope that the unfairness of this decision will show parliament why law reform is necessary.”

Even Lady Hale, who will be hearing Owens today alongside her four colleagues, has said requiring one spouse to attribute blame on the other “adds needlessly to the anger, pain and grief felt by many” when their marriage breaks down. Provisions for no-fault divorce exist in the likes of Australia, Canada and the United States.

Marshall, Stephen Jarmain and Millie Benson — all from 1KBW — will be representing the appellant, Tini, today, when the five justices mull over their interpretation of the law on fault in divorce. Niger Dyer QC, 1 Hare Court, and Hamish Dunlop, 3PB, will represent Hugh. One intervener, Resolution, an organisation for family lawyers which supports no-blame divorces, will be giving written submissions.

The hearing is scheduled to last one day.

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25 Comments

Not Amused

It would further harm the constitution if the Supremes take action here. To do so is simply not their place.

It is for parliament to decide on changes to divorce law. The Law Commission published a draft on no fault divorce goodness alone knows how many years ago. Parliament must decide.

I want the law to change. So by all means lobby parliament and put pressure on them through the media and through legal protest.

But for a judge to subsume the power of parliament to themselves: that’s a coup, no matter how worthy the motive.

K&E Rat (a kind one)

Well, this would not be a first would it? Look at the development of the doctrine of Consideration. It took the courts 300 years to convince the Parliament, through various judgments, to legislate on third party contractual rights.

Anonymous

K&E? How did you find the spare two minutes to read this and comment?!

Separation of Powers

Court of Appeal had that point firmly in mind. This is Lady Justice Hallett:
“With no enthusiasm whatsoever, I have reached the same conclusion on this appeal as my Lord, the President, for the reasons that he gives. It was the trial judge’s duty, and ours, to apply the law as laid down by Parliament. We cannot ignore the clear words of the statute on the basis we dislike the consequence of applying them. It is for Parliament to decide whether to amend section 1 and to introduce “no fault” divorce on demand; it is not for the judges to usurp their function.”

Anonymous

Another day, another article about Lady Hale. Give it a rest Katie.

Anonymous

I don’t think it would be right for this to be changed when there is no fault

Marriage should still be worth something as an institution

Anonymous

Yes that’s right, let’s just imprison one party in a loveless marriage where the other party is being obstructive in the divorce.

That’ll be great for the mental health stats, human happiness generally, no to mention everyone’s basic right to lead a free and fulfilling life.

Anonymous

At least I can rest easy today knowing which particular seats each of the justices will be occupying.

Anonymous

Absolutely ludicrous that Parliament hasn’t legislated for no fault divorce to date.

This is what you get when you have a load of middle age Tory men filling the benches, who take their moral guidance from the rural CoE vicar.

Moral Pillar

How else would plebs like you receive the moral guidance you so obviously need?

Anonymous

There’s a vested interest here.

If you can get no fault divorces a considerable number of people will sort themselves out without the Bar.

All of the judges who have been involved with the case have pontificated about Parliament but are really splitting hairs on unreasonable behaviour to protect the Bar.

You can see that accountants will be ready to move into divorce in a flash if the Bar is superseded.

Anonymous

You very rarely engage barristers on the divorce side of marital breakdown. It is a form which is either filled in by the litigant in person or a solicitor. Receiving party then takes advice from solicitor. Solicitor then always advises party to concede the divorce as it is utterly pointless to have a long strung out court case where you argue whether one party performed various acts of unreasonable behaviour or whether they shagged the wife’s sister.

Where the barristers come in is on matrimonial finance and child proceedings, which would still exist if we had no fault divorce.

Though granted, if we had no fault divorce he parties to the divorce would get considerably less wound up due to the lack of accusations flying around about their behaviour. Therefore fewer people may feel the need to be obstructive about the children or finances in order to get one over the other party in return.

Anonymous

While this lady is stuck between a rock and a hard place the correct forum for this is parliament changing the law.

She could however just get another fella and move on with her life, humiliating her cuckold husband until he gives in. Probably not what she wants to do!

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

Anonymous

As a divorce solicitor, I can say that every day I get divorce cases through on far weaker grounds than this case. I blame the original Judge who should not have rejected the petition. As a divorce solicitor, every day I am compromising a set of divorce proceedings so that we can concentrate on the really important issues – the children and the finances. Who are we / who is the government / the Judges to sit in judgement on forcing people to stay in a marriage? Rather than making it difficult to get divorced, we should be making it harder to get married in the first place.

Anon

If you read Munby’s judgement in the Court of Appeal, he acknowledges that the only reason this hasn’t gone through is that the Husband defended the petition, and that both the Judge and the CoA were forced to address the fact that the petition was very weak – if he’d ticked “No”, she’d have been divorced long ago

Anonymous

Quite. This is the very point the press have missed.

Anonymous

Oh wow, an admission that family solicitors generally deliberately wind up one or both parties in order to stoke the flames for a protracted battle over the children and/or finances

Anonymous

Katy can we please know more about Lady Hale’s divorce?

Anonymous

Not surprising, who’d want to remain married to an unelected, senile, impoverished horse?

Anonymous

She should recuse herself, lol

Baron Jeff.

Let’s cheapen marriage even more.

Anonymous

Or you could just try to keep your spouse happy

Anonymous

We’ve had no-fault separation and divorce for nearly 70 years now in Italy, so that the Anglo American system looks really cruel and unreasonable. By the way it should be considered that the majority of couples don’t marry and can split without obligation of support. So the whole matter looks a bit … old fashioned, isn’t it?

Anonymous

It would be interesting if the law were to change – especially with my Family Law exam in 2 weeks!

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