Specialist lawyers from across the country have united to call for an end to archaic divorce laws, which can force ex-partners to remain married in extreme circumstances.
The comments come after a Supreme Court ruling last week which saw 68-year-old Tini Owens denied a divorce from her husband of 40 years – despite her claims it was ‘loveless’ and the relationship was “irreconcilable”.
Currently, unless you have lived apart for a substantial amount of time (two years if you both agree to a divorce, five if one person does not), then a divorce can only be granted by proving the other person is ‘at fault’.
‘Divorce Is Out Of Step With Our Society’
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Speaking to RightsInfo about the importance of both Ms Owens’ case, and the need for reform, James Maquire, a specialist divorce lawyer, said the need for reform was now “urgent”.
“The outcome illustrates how out-dated our divorce laws are,” he adds. “Whilst the circumstances here are clearly very unusual, the case illustrates that divorce process in this country is very out of step with our society.
“It cannot be right or fair to expect estranged parties to place their lives on hold waiting for at least two years after separation to be in a position to file for divorce; with the only alternative being to commence a divorce based on potentially hurtful and inflammatory ‘fault-based’ grounds of ‘adultery’ or ‘behaviour’.”
Similarly, Sarah Ward, a partner at Ramsden Solicitors, added that the case for reform was not only “urgent”, but risked the chance of an “amicable resolution”,
“Many couples are shocked to hear that they must blame the other party or wait 2 years and blame can lead to animosity and recrimination, affecting parents’ decisions where children are involved,” she added.
“Divorce without blame will increase the chances of amicable resolution, reducing the burden on the family courts.”
‘Divorce Will Turn Into A Soap Opera’
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Teena Dhanota-Jones, family partner at London law firm Hodge Jones & Allen, also warned RightsInfo that the current laws could leave divorce proceedings more akin to a “soap opera”.
“If the need for fault – either adultery or, as cited by Mrs Owens, unreasonable behaviour – continues,” she explained, “it follows that a spouse seeking divorce may have to reveal the deepest intimacies of their married life to convince a judge that they have grounds. In other words, get down and dirty with every lurid detail they can think of to stand a hope of succeeding.”
It follows that a spouse seeking divorce may have to reveal the deepest intimacies of their marrid life to convince a judge they have grounds.
Teena Dhanota-Jones
“These unpleasant and antagonist particulars will generate more contested divorce proceedings before the court than ever before, with hearings becoming equivalent to the worst of reality TV. The law should not be party to that.”
Philip Barnsley, a partner and Head of the Family team at Higgs & Sons, also believes the case is a “clear example” of why the law should be changed.
“In a modern society, how can it be right for a woman to be forced to remain married to a man when three courts of law have all accepted that the marriage is loveless and at an end?”
A Move To Change
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Currently, while the right to marry is specifically protected as a human right, it doesn’t say anything about divorce as a right. A case in 1997 found that there should be no restrictions on divorced people getting remarried, but there is no set guidance on how people should get divorced.
However, a change could be afoot, after sources suggested David Gauke, the Justice Secretary was looking at the evidence for change and accepts “the strength of change on the issue”.
In this day and age, it’s unfair that a couple are forced to stay together, even if they cannot make their marriage work. It seems to be nonsense that two adults should have to resort to making allegations about the other’s behaviour in order to obtain a divorce.
Kelvin Henderson, Nelsons
A Ministry of Justice spokesman added: “We have noted this judgment and are carefully considering the implications.
As Kelvin Henderson, partner in the divorce and separation team at East Midlands-based Nelsons, explains while the current laws date back to 1968, “when attitudes to marriage and divorce were very different”, it’s vital the Government is the one to intervene.
“Despite it being obvious that the marriage is over and there is no prospect of reconciliation, Mr and Mrs Owens must remain tied to each other for another two years or so because of a law that was devised nearly 50 years ago.
“Only Parliament can change the law to permit no fault divorce, so this case hasn’t changed the procedure to get a divorce but it has highlighted the serious shortcomings of the procedure in today’s world.”
