Tag: Tini Owens

Divorce law change one step closer

A law change to bring in ‘no fault’ divorce has moved a step closer.

MPs this week approved the bill at its second reading in the House of Commons. It will now undergo further scrutiny from a committee of MPs before being considered by peers in the House of Lords.

The Divorce, Dissolution and Separation Bill removes the need to find fault in order to start proceedings in England and Wales.

Justice Secretary David Gauke told the Commons that at present couples could not separate “if they have grown apart” unless they have the means to live apart for two years.

Rise in divorce rate

He also said a change in the law would help in situations where there was one abusive partner, but the other did not want to raise these issues in court for fear of the relationship further deteriorating.

What you need to know about divorce law changes

Mr Gauke said a rise in the divorce rate once the law was changed was inevitable because people have been holding off their separation, waiting for a legal change.

“So, the likelihood is there will be an increase because of that waiting list,” he said.

He added evidence from other countries suggested “once that initial spike has been dealt with… the divorce rate is unlikely to increase and it is likely to remain much the same.”

Mr Gauke added: “The Bill responds constructively to the keenly felt experience of people’s real lives. This is a Bill for anyone who agrees that the end of a relationship should be a time of reflection, and not of manufactured conflict.”

The proposed changes follow the Supreme Court’s rejection of a woman’s appeal for divorce after her husband refused to agree.

Tini Owens wanted to divorce her husband of 40 years, on the grounds that she was unhappy with his behaviour. But her husband Hugh refused to agree to it and the Supreme Court unanimously rejected her appeal. It meant the couple must remain married until 2020.

No fault? Not always

MP Fiona Bruce was concerned that the removal of fault, without any opportunity to challenge, would mean that some who are genuinely wronged cannot put anything on record on what they feel about the reasons for the divorce.

Removal of fault sends out a signal

She said: “Sadly, I believe it will make divorce easier…because it will allow one party to walk away from the most important commitment they are likely to have made in their lifetime, without giving any reason at all and without their spouse being able meaningfully to object to their decision to do so.

“The removal of fault sends out a signal. I am particularly concerned about the signals sent out by the Bill to young people – that marriage can be unilaterally exited, on notice, by one party, with little if any recourse available to the party who has been left.

“I fear it signals that marriage need no longer be entered into with the intention of its being a lifelong commitment, as it is today – perhaps it will be signalled more as a time-limited arrangement that can be ended at will.

“It is interesting that, in my law firm, I am now hearing the phrase “My current partner” coming into usage.”

Protection for co-habitees

Wera Hobhouse urged the Government to also do more to improve the legal rights of co-habitees.

She said: “There is much more that can be done to bring our marriage laws into the 21st century.

“We must recognise that marriage and civil partnerships are not for everyone, and that young people who do get married are doing so later and later. Our legal system needs to catch up with society, in which millions of couples choose to live together without making a formal commitment.

“The Law Commission suggests granting essential but limited legal rights to couples who have lived together for at least three years. Such legislation would complement the new divorce, dissolution and separation laws.  I urge the Minister to take another look at that proposal.”

Verbatim report of this week’s second reading in the House of Commons

Mr Owens’ barrister: It takes two to make a marriage

The barrister who successfully defended the year’s most high-profile divorce petition told Merrick Solicitors it took both spouses’ participation to make a marriage.

Nigel Dyer QC represented Hugh Owens in the Supreme Court when the UK’s highest court dismissed his wife Tini’s appeal against the lower courts’ refusal to grant her a decree nisi.

The landmark ruling prompted widespread publicity and renewed calls from family law solicitors for the introduction of ‘no fault’ divorce.

Mrs Owens’ petition relied upon her allegations about her husband’s behaviour to prove that she could not reasonably be expected to live with him and that the marriage had irretrievably broken down. But the Supreme Court agreed with both the original trial judge and the Court of Appeal in deciding that she had not sufficiently proved her case.

The Government subsequently opened a consultation on divorce law inviting submissions by December 10.

Owens divorce; Nigel Dyer QC

Mr Dyer, of London’s 1 Hare Court Chambers, said: “I think it’s difficult to see how a marriage can continue when one spouse refuses to participate in it.

“It’s got to be a consortium, and absent one party playing a role I don’t think that is a marriage.

Divorce reform necessary

“I do think divorce reform is necessary. The statute is outdated in contemporary society. It has its foundations in the matrimonial offences of the 19th century.”

Asked for his view of the outcome in the Supreme Court judgment, he said: “The Supreme Court has made it clear that the current law has been misinterpreted for many years by practitioners and judges using the expression ‘unreasonable behaviour” when referring to a petition relying on section 1(2)b (behaviour) and looking to attribute blame.

“But as the Supreme Court explained section 1(2)(b) is conduct based rather than fault based, and the behaviour complained about does not have to have caused the breakdown of the marriage.

“I think there has been a lot of misconception in the interpretation and application of the law.

“For example, a government website giving the public advice about issuing a petition provided a commentary on section 1(2)b. This stated that in order to succeed on the fact of unreasonable behaviour you have to prove quite serious fault and gave the example of domestic violence.

Linguistic trap

“The point made in the Supreme Court is that in using the expression ‘unreasonable behaviour’, lawyers and judges fell into a ‘linguistic trap’. They saw the behaviour in terms of having to prove fault when this was not necessary.

“I think that over time this misconception became commonplace. Because there are very few contested divorces the lawyers didn’t have to think about what section 1(2)b actually meant when they filled in a divorce petition. No contested divorce case went to the House of Lords and it took the Supreme Court to provide judicial guidance.”

Contested divorce cases are rare. In the Court of Appeal the President of the Family Division said that of the 114,000 divorce petitions in 2016, only 800 answers were filed. He estimated around 0.015% – less than 17 – went to a final, contested hearing.

Mr Dyer has acted in just five such contested hearings in 35 years at the Bar.

He said: “Although the case of Owens caught the nation’s attention, in reality it is relevant to only a very small minority of cases.

“It was a big noise about a very small area of family law.”

The second part of this interview with Nigel Dyer QC covering the Government’s divorce law consultation will be published shortly.

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Divorce law reforms must be for the better

Divorce law reform: Supreme Court 2

Supreme Court’s decision to deny Tini Owens a divorce has understandably hit a nerve with many.

Five judges of the UK’s highest court this week upheld rulings by the Family Court and the Court of Appeal that she must stay married despite her complaint that the marriage is loveless and has broken down.

Divorce law reform

The case has provoked widespread comment about the need for divorce law reform and a move to ‘no fault divorce’.  Many in the legal profession have described it as a missed opportunity.

The Supreme Court, however, was never likely to grant the divorce. As its president Baroness Hale had said previously, the court is there to interpret and apply laws made by Parliament, not to change those laws.

Nevertheless, Lady Hale said she found the Owens divorce case “very troubling”.

She said “expectations” of whether it was “reasonable to expect one spouse to continue to live with the other, in the light of the way the latter has behaved” had changed over the past half century.

“The social norm which has changed most obviously is the recognition that marriage is a partnership of equal,” she said.

Question for Parliament

In delivering the judgement, Lord Wilson, said the justices had ruled against Mrs Owens “with reluctance”.

He said the “question for Parliament” was whether the law governing entitlement to divorce remained “satisfactory”.

So there we have the ball once again passed squarely back to the law makers.

Will they now find the resolve and time to re-evaluate laws that have stood for half a century?

What must be ensured amid the clamour of this particular case is that any changes improve the system and are not simply a knee jerk reaction.

No one could argue that what we have now is perfect.

And some have already said that what we may see next are instances where divorcing parties feel they must embellish grounds for divorce to ensure that applications proceed without issues as in the Owens’ case. That would not be good for anyone.

Under current law there is only one legal ground for divorce, that the marriage has irretrievably broken down. The person who starts the proceedings must prove this by establishing one of five facts: adultery, unreasonable behaviour, desertion, two years separation with the other party’s consent, five years separation (no consent required).

Hence, Mrs Owens will have her divorce five years post-separation in 2020. In the meantime changes in society rightly mean there is no stigma associated with her separated status.

So how would replacing this with a ‘no fault’ option improve Mrs Owens’ lot? Surely Mr Owens should still have a say…it’s his marriage too.

And what of the cathartic experience of laying blame; such an acknowledgement can be a powerful part of the healing process for some.

Can ‘one size fits all’ work?

Is society at a point where it is appropriate for one party to turn their back on a marriage because they have decided it’s no longer for them. Are we ready to dispense with the notion of  ‘for better or worse’; the principle of commitment?

None of this is intended to minimise the angst felt by Mrs Owens, or anyone else who sadly finds themselves in a similar situation. But given that no two relationships are the same can a “one size fits all” approach to divorce, really work?

The complex nature of relationships means that every couple’s breakdown brings with it its own challenges.

In asking Parliament to move us away from something imperfect and ripe for reform this should not be forgotten.

We’ve previously written about no fault divorce here.