"You have to know the past to understand the present" said Carl Sagan. On the eve of the biggest reform to our divorce laws in 50 years, it seems appropriate to reflect on one of the key moments in the campaign for change - the Supreme Court case of Owens v Owens.
When Mrs Owens issued her divorce petition in May 2015 it’s doubtful that she thought she’d still be married five years later let alone see her case go to the Supreme Court and be the catalyst for the most significant changes to divorce law in generations.
The Supreme Court decision in July 2018 that Mrs Owens was not entitled to a divorce despite an unhappy relationship epitomises all that is wrong with our existing divorce laws. Currently (but not for much longer), divorcing couples must either spend a minimum of two years separated or one must blame the other for the marriage breaking down, relying on adultery or so-called unreasonable behaviour. Even if the couple mutually agree the relationship is over, they still have to apportion fault if they want to waive the two-year waiting period.
At the centre of the Owens’ contested divorce was the interpretation of so-called unreasonable behaviour. Relying upon it involves the person bringing the divorce setting out a number of examples of their spouse’s behaviour that “proves” it is unreasonable for the couple to remain living together.
The phrase “unreasonable behaviour” does not actually appear in the law. However, this short-hand was resulting in judges feeling that they needed to find “bad behaviour” in order to grant a divorce based on it, rather than the focus being on the impact of the behaviour on the spouse seeking the divorce. Added to that were very real concerns among family lawyers that those seeking a divorce were relying on increasingly extreme examples of conduct, inflaming an already fraught situation.
We were instructed by Resolution, an organisation of around 6,500 family justice professionals committed to the constructive resolution of family disputes. We successfully applied for Resolution to intervene in the Supreme Court proceedings allowing Resolution the opportunity to provide the court with information about the practical problems that the current interpretation of the law was causing as well as providing an alternative interpretation of the law that would have allowed the court to grant Mrs Owens her divorce.
The Supreme Court’s decision may not have been the one we were hoping for at the time but it shone a spotlight on the urgent need for reform. Almost four years on from sitting in the Supreme Court, we are on the brink of seeing that reform happen. No fault divorce has never been about making divorce (or dissolution) easy or making marriages or civil partnerships disposable. Reform has always been about making the end of a relationship a more dignified process that is a little bit kinder to the families involved.