An unhappy marriage is no grounds for divorce
July 25, 2018 3:19 PM   Subscribe

U.K. Supreme Court judges "reluctantly" upheld lower court rulings that a joyless marriage is not adequate grounds for divorce without the spouse's consent. Tini Owens has been petitioning for divorce since 2015, but her husband's refusal has prohibited the divorce from going forward. "The appeal of Mrs Owens must be dismissed. She must remain married to Mr Owens for the time being,” the supreme court judge Lord Wilson said in the majority ruling. “Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances.” The case has brought the lack of "no fault divorce" law into the spotlight.
posted by stillmoving (32 comments total) 14 users marked this as a favorite
 
I actually like a combination of fault based and non fault based divorces. Like, absolutely allow no fault divorces, but by all means if someone has been a monster, that should be considered when assigning support.
posted by corb at 3:23 PM on July 25, 2018 [16 favorites]


Child support is not a reward or a punishment. It's for the children's welfare. I could possibly see an argument for adjusting alimony.
posted by rdr at 3:41 PM on July 25, 2018 [4 favorites]


corb said support not child support. It's reasonable to think she meant the division of marital assets and not child support.

The right to divorce is one of the most important rights women have secured ever. To be forced to stay married is unconscionable. I hope parliament resolves this swiftly.
posted by I'm Not Even Supposed To Be Here Today! at 3:49 PM on July 25, 2018 [63 favorites]


I hope parliament resolves this swiftly.

While they are apparently big fans of splitting up, their speed and follow-through are less than spectacular.
posted by Celsius1414 at 3:57 PM on July 25, 2018 [35 favorites]


This, coming from the country that gave us Henry VIII and the Church of England - smh/wtf.
posted by nikoniko at 4:11 PM on July 25, 2018 [18 favorites]


On one hand, they're kinda right that this is the legislature's mess to fix.

On the other hand, ruling that refusing a request for a divorce is evidence of abusive and controlling behaviour that is grounds for divorce would be a delightfully honest end run around this stupidity.
posted by Zalzidrax at 4:42 PM on July 25, 2018 [57 favorites]


TIL that the UK doesn't have no-fault divorce. That's pretty fucked up! What the hell, UK?
posted by Anticipation Of A New Lover's Arrival, The at 4:42 PM on July 25, 2018 [19 favorites]


The article mentions, "Tini Owens will only be able to divorce her husband in 2020, when they will have been separated for five years."

Lacking proof of legally-divorceable behavior on his part, all she can do is wait; five years separation is apparently considered proof that the marriage has broken down. He is apparently holding on to shreds of hope that she will give up and decide to just keep living with a guy who's "often moody and argumentative," and "had disparaged her in front of others."

He's 80. She's 68. I'm not surprised that, as unhappy as the marriage is, he's looking ahead and realizing he's going to be damned lonely in the future, and so he's holding on to every shred of the relationship that he has any control over.
posted by ErisLordFreedom at 4:52 PM on July 25, 2018 [12 favorites]


He's not hoping for anything besides her continued control by him. He's not hoping she'll change her mind, he's hoping he'll get to keep stopping her from leaving. Those are very different. He doesn't care about her mind.
posted by I'm Not Even Supposed To Be Here Today! at 5:03 PM on July 25, 2018 [40 favorites]


But [the judge] nevertheless dismissed her petition, ruling that her case was flimsy and exaggerated. The judge said that while Hugh was “somewhat old-school”, Tini was more sensitive than most wives.

Really, really just too suddenly full of white-hot rage to say anything particularly coherent here.

Fucking patriarchy.
posted by Squeak Attack at 5:19 PM on July 25, 2018 [57 favorites]


The UKSC’s judgment (PDF, HTML) and summary.
The Court of Appeal’s judgment (HTML).

In brief, English law provides for 4 main grounds for divorce:

- Adultery by the other spouse
- Behaviour by the other spouse that makes it unreasonable to be expected to live with them
- Two years’ separation, with the consent of the other spouse
- Five years’ separation, irrespective of consent

(Scottish law is similar, but the periods for the final two grounds are one and two years; this case was purely about English divorce law.)

The history of English divorce law is not pretty; we have arrived at a state where the law is unsatisfactory as an improvement on it being awful. This is summarised at paragraphs 86 onwards in the Court of Appeal’s lead judgment (given by Sir James Munby, the senior Family judge of England and Wales), including a description at paragraph 95 of the ludicrous charades once engaged in to justify divorces. As Sir James notes, the current law, often requiring contrived allegations of behaviour is scarcely better.

Here, Mrs Owens’ lawyers plead a rather anodyne set of allegations of behaviour. That is hardly surprising; in the vast majority of such cases, the other spouse, accepting the reality that the marriage is over, does not contest these and decree nisi (the first stage of the legal divorce) is granted by a judge as a paperwork exercise. As Lord Wilson noted at paragraph 15 of the UKSC decision, of 114,000 petitions for divorce in 2016, in only 800 were behaviour allegations challenged, and only 17 of those led to contested hearings.

Yet, here, for reasons others commenting on this post have speculated on, Mr Owens was determined not to agree that he had behaved in a way that made it unreasonable for Mrs Owens to live with him. On hearing the case, the first-instance judge, applying the words of the law to the allegations made, agreed that they did not meet the legal test. His approach is somewhat criticised in the UKSC decision, particularly in the judgment of Lady Hale (President of the UKSC and a very experienced Family judge) at paragraphs 48-50. However, the solution she identified – to remit the divorce hearing back to a different judge – was one that Mrs Owen herself said, through her legal team, she did not want. Absent that, the UKSC could not find that the judge’s decision had, in law, been wrong.

So what we have here is a contrived legal test, that in almost all divorces where it is applied is overcome by contrived pleadings and a contrived response. The defects of this approach, apart from its generally unsatisfactory nature, are illustrated by this case, where the respondent (Mr Owens) has dug his heels in and refused to accept the inevitable. As both the Court of Appeal and the UKSC have now said, Parliament has got to tackle this and give us a divorce law fit for the 21st Century.

If only it wasn’t so preoccupied with other matters right now.
posted by Major Clanger at 6:23 PM on July 25, 2018 [13 favorites]


corb, the English law on financial remedies in divorce is actually very no-fault. Although conduct is one of the factors that the court is required, by s.25 Matrimonial Causes Act 1973, to consider, there is extensive case law to the effect that conduct has to be very bad indeed for this to take the court away from what is fair in terms of the means and needs of the divorced spouses. Just how bad is set out in the leading case on this point, S v S at paragraph 38. As I often have to explain to my clients, little short of attempted axe-murder will shift the court from the usual presumption that, after all but the shortest or most impoverished of marriages, each spouse will get about half the assets.

If this seems unfair - and it's hard to say that it isn't - it's because, as I understand it, the 1973 law and subsequent cases interpreting it were in the context of a deliberate effort to move away from the previous approach of raking over every detail of behaviour during the marriage in an effort to determine who was more or less 'worthy' of financial support. Instead, the new attitude seems to have been that it was better to put all that behind the parties and instead, in all but the very worst cases, just look at what each party needed and what resources there were in the 'matrimonial pot' to meet those needs.

Whilst I can see how the old approach risked making an unpleasant process far worse, I regularly act on behalf of parties to divorce finance cases where it is hard not to feel that one side (usually the husband, but in some cases the wife) has behaved in a way that, while falling short of what was set out in S v S, still ought to have some influence on the division of assets.

Often, this can be dealt with in other ways. A husband who has wasted the family savings on gambling may be deemed to have dissipated assets to which the wife was jointly entitled, and so be required to 'add back' her notional share from what he would otherwise receive. A high earner who dumps his or her lower-earning spouse may well end up paying maintenance, or a large capital sum in lieu, particularly if the lower-earning spouse was reliant on support by, say, having given up work to raise children. (And child support is an entirely separate and additional matter).

But, if given the choice, I would lower the threshold at which conduct becomes a significant factor in deciding on how much a spouse receives after divorce. Yes, we have a divorce financial remedy process that puts great store on settling cases by judge-guided agreement wherever possible, but I don't see why a judge at a settlement hearing could not give guidance that, on the face of it, one party's allegations of misconduct are sufficiently credible that a full final hearing would probably take them into account. That probably makes me something of a heretic among English divorce lawyers, but if we do move further towards no-fault divorce, it may be time to give more weight to fault when considering how to provide for each party afterwards.
posted by Major Clanger at 6:53 PM on July 25, 2018 [11 favorites]


So the idea is that the other party has to agree to the divorce as well to make it stick? Sounds like what the wife should be doing is acting as abysmally as possible in an effort to make him beg for a divorce. Spending sprees, screwing around (sounds like she has that one covered already) going out and not coming home for three days etc. I’m sure people can get more creative than that.

The issue with this is that it takes what could have been a reasonably amicable situation and ensures that couples decades later still won’t be able to attend their children’s wedding together without wanting to claw each other’s eyes out. What a mess. Just let her go.
posted by Jubey at 10:59 PM on July 25, 2018 [2 favorites]


What a giant load of sexist fucking nonsense. UGH.
posted by desuetude at 11:07 PM on July 25, 2018 [4 favorites]


Sounds like what the wife should be doing is acting as abysmally as possible in an effort to make him beg for a divorce.

Except that, if she sticks around, he can force her to stay married indefinitely. As they're separated, she only has to wait a couple more years. If she draws from the joint bank account, contacts his coworkers, and so on, the courts might rule that they're not really separated.

takes what could have been a reasonably amicable situation and ensures that couples decades later still won’t be able to attend their children’s wedding together without wanting to claw each other’s eyes out

Given that she's 68 and he's 80, I don't think this is likely to be an issue. Attending their grandchildrens' weddings is not likely to have the same level of tension; they aren't likely to have specific roles in those. The courts are aware that the arrangement is ridiculous - when a couple wants an amicable divorce, they have to invent charges to file against each other; the state is not better off with couples committing perjury in order to be allowed to divorce in less than 5 years.
posted by ErisLordFreedom at 12:44 AM on July 26, 2018 [2 favorites]


I saw this as the headline of the Evening Standard last night and I thought I was missing something because what? Turns out nope, it's exactly like it sounds. I've lived here for 11 years and count me as one of the people who had no idea that the divorce laws here were so patriarchal if not straight up medieval. WTF.

I had noted to my husband a while back that I didn't know as many divorced couples here in the UK compared to the states. Turns out there's a reason for that!
posted by like_neon at 2:00 AM on July 26, 2018


I've lived here for 11 years and count me as one of the people who had no idea that the divorce laws here were so patriarchal if not straight up medieval. WTF.

This absurd law applies to men and women equally, so it may be medieval but I'm not sure that this particular law is patriarchal. Incidentally, it is only really in the 2nd half of the 20th century that social attitudes to divorce shifted in this country, certainly as late as the 1950s the law on- and attitudes towards- divorce had barely changed since the 1830s when civil divorce became possible.

I had noted to my husband a while back that I didn't know as many divorced couples here in the UK compared to the states. Turns out there's a reason for that!

That may be because the US has one of the highest divorce rates in the world. It's not to do with law though, the vast majority of divorces are uncontested and easy to get. It's only in cases like this that out-dated basis for the English law on divorce becomes a problem.

As Major Clanger says, there are basically four legal grounds for divorce here:

- Adultery by the other spouse
- Behaviour by the other spouse that makes it unreasonable to be expected to live with them
- Two years’ separation, with the consent of the other spouse
- Five years’ separation, irrespective of consent


The first ground would only apply if he were filing for divorce, which he isn't.
The third would only apply if he consented which he has not - the majority of divorces are resolved this way.
The second is the ground she has chosen for filing, in most cases where a spouse files on this ground it is not contested. Since the allegations of unreasonable behaviour have no legal consequence (not taken into account in division of assets), most people will not contest them. In this case however, Mr Owens believes that they are untrue and because he is a difficult person has decided that he will contest them.

That leaves the court with a challenge - the standards for what constitutes unreasonable behaviour are pretty high, this rarely matters because they're so rarely contested. In this case it does matter, since he has contested the allegations against him, the court has to decide using the law whether he has behaved in a sufficiently unreasonable way.

The original court did not find that they met that test. The SC cannot decide otherwise, only rule on the law. Mrs Owens has two choices - she can wait out the five years or go back to a lower court to convince another judge that his behaviour has met that test.

Meanwhile, parliament needs to resolve this. This law is absurd and nobody wants it but it is the law.
posted by atrazine at 2:58 AM on July 26, 2018 [1 favorite]


"The judge said that while Hugh was “somewhat old-school”, Tini was more sensitive than most wives."

I don't see how this law isn't set up to support the patriarchy. This reason would very unlikely be used if the sexes were reversed.
posted by like_neon at 3:04 AM on July 26, 2018 [5 favorites]


In brief, English law provides for 4 main grounds for divorce:

- Two years’ separation, with the consent of the other spouse


Thanks for this summary because I was worried I'd just learned something unpleasant about my parents' divorce...
posted by EndsOfInvention at 3:56 AM on July 26, 2018


It's probably helpful in discussing this to look at what the actual allegations relied upon by Mrs Owens were. They are discussed in detail in the Court of Appeal decision.

Para 5 sets out the allegations as initially plead by Mrs Owens in her divorce petition. (She is the 'Petitioner', he is the 'Respondent'):

"1 The Respondent prioritised his work over home life and was often inflexible in making time available for the family, often missing family holidays and family events. This has caused the Petitioner much unhappiness and made her feel unloved.
2 During the latter years of the marriage the Respondent has not provided the Petitioner with love, attention or affection and was not supporting of her role as a homemaker and mother which has made the Petitioner feel unappreciated.
3 The Respondent suffers from mood swings which caused frequent arguments between the parties which were very distressing and hurtful for the Petitioner who has concluded that she can no longer continue to live with the Respondent.
4 The Respondent has been unpleasant and disparaging about the Petitioner both to her and to their family and friends. He speaks to her and about her in an unfortunate and critical and undermining manner. The Petitioner has felt upset and/or embarrassed by the Respondent's behaviour towards her as well as in front of family and friends.
5 As a result of the Respondent's behaviour towards her, the Petitioner and the Respondent have until recently lived separate lives under the same roof for many years and have not shared a bedroom for several years. On 10 February 2015 the Petitioner moved into rented accommodation and the parties have been living separate and apart since that date."


These were set out in more detail in advance of the actual court hearing. The more detailed allegations, and Mr Owens' responses, are set out at paras 12 to 19 of the CoA decision.

Paras 20 and 21 give a detailed discussion, including transcript, of the oral evidence given in court on one incident, which was the one that Mrs Owens' counsel chose to focus on (the 'airport incident').

At para 45 the CoA sets out and approved as being correct the original judge's statement of the law he had to apply to this:

"I have to take into account the individual circumstances of the spouses and the marriage: "would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him taking into account the whole of the circumstances and the characters and personalities of the parties?""

The original judge's finding that the alleged behaviour did not cross this threshold, and his reasons for saying why, are set out by the CoA at paras 46 to 50.

The CoA and then UK Supreme Court had to decide if the judge had been wrong to conclude this. I should note here, as someone who regularly does appeals in the English courts, that it is very difficult to persuade an appellate court to overturn a finding of fact made by a judge who saw first-hand the evidence of the parties. It is not enough to say that the finding was not the best one that could have been made: it has to be one that falls so far outside the spectrum of legitimate findings on the evidence that no reasonable judge could properly have made it.

Here, neither the CoA nor the UKSC could go that far. The closest they got was Lady Hale's comment (UKSC decision, para 50) that the way the hearing was conducted did not adequately allow consideration of the cumulative effect of individually-minor incidents. However, as I've noted above, the remedy for that would have been to remit the case for re-hearing, and Mrs Owens was apparently clear that she did not want to do that.
posted by Major Clanger at 4:01 AM on July 26, 2018 [3 favorites]


I don't know why all the Americans here are acting like we're so much better.

The cost of filing and taking off work, etc is a barrier to divorce for many women in the US. I know, I was one of them.

I was being horribly emotionally, verbally, and financially abused enough to be taken in and sheltered at a domestic violence center. But I couldn't afford to divorce because I had zero income and savings, and legal aid wouldn't take the case at first because they have trouble proving emotional abuse. I had one of their lawyers advise me off record to bait my husband into hitting me so they could take the case.

I only managed after going to a workshop given by legal aid about representing yourself in court. I was the last person for the free five minutes consultation at the end and my story poured out. The lawyer felt so sorry for me and my disabled son, he took the case himself outside of legal aid on the agreement that I simply went no fault and didn't ask for alimony so my bastard husband wouldn't drag it out. I agreed and was divorced in three months.

But I was privileged enough to be white, educated, etc. I'm sure if I were otherwise, the story would be different.

It's incredibly hard for those that need it to still divorce in the US, so maybe let's not play better than thou in the thread.
posted by 80 Cats in a Dog Suit at 5:10 AM on July 26, 2018 [12 favorites]


> Given that she's 68 and he's 80, I don't think this is likely to be an issue. Attending their grandchildrens' weddings is not likely to have the same level of tension; they aren't likely to have specific roles in those.

Hahahhhahaha, your people apparently don't grudge the way my people do.
posted by desuetude at 6:57 AM on July 26, 2018 [3 favorites]


This absurd law applies to men and women equally, so it may be medieval but I'm not sure that this particular law is patriarchal.

Of course it's patriarchal. It was written by men, for men, in a patriarchal system, and is now (mostly) enforced by men (unless the UK has parity in the gender of judges.)

Also, to describe something as medieval, is to also describe it as patriarchal.
posted by Squeak Attack at 7:27 AM on July 26, 2018 [10 favorites]


Hahahhhahaha, your people apparently don't grudge the way my people do.

I don't mean that they aren't as likely to resent and hate each other, just that grandparents don't have pre-established traditional roles like "walk the bride down the aisle" or "host the reception" that would require them to interact with each other or with a large number of other guests. As grandparents, they could just sit far apart and fume from a distance. Also, either of them could politely decline without disrupting the expected ceremony.
posted by ErisLordFreedom at 7:39 AM on July 26, 2018


Squeak Attack, I'll agree this law was almost certainly written by men. Probably more importantly, it had to pass with the agreement and input of the House of Lords, which includes a number of Church of England bishops. Yes, we have a state religion and we give it a role in law-making. I've seen other lawyers comment that, back in 1972 or so, that was probably quite a heavy brake on the extent of divorce law reform.

But I have to disagree on your other point. As you might notice from reading the UKSC decision, its President (i.e. Chief Justice equivalent) is a woman, Lady Hale. (Who, incidentally, has just been the subject of a new portrait, with some amusing details.)

Of five judges recently appointed to the High Court of England and Wales, three were women. In terms of judges doing family cases, here are my last few court hearings in family matters:

5th July, male judge
4th July, female judge
3rd July, female judge
2nd July, male judge
18th June, female judge
14th June, male judge
6th June, male judge
5th June, male judge
31st May, female judge

So, for a selection of family (usually divorce finance) cases scattered across central England, the judges I appeared before were evenly split male/female. That reflects my general experience. Judges in England are appointed, not elected, and the pool of lawyers they are selected from is pretty much at parity (and, at the younger end, has more women than men entering the profession.)
posted by Major Clanger at 8:02 AM on July 26, 2018 [4 favorites]


TIL that the UK doesn't have no-fault divorce.

England and Wales does not. In Scotland, since 2006 at least, the concept of fault is gone.

No idea about Northern Ireland. It is probably entirely outlawed.
posted by scruss at 10:02 AM on July 26, 2018


In Scotland, since 2006 at least, the concept of fault is gone

Is that definitely the case? Section 1(2)(b) of the Divorce (Scotland) Act 1976 provides, as a ground for divorce,

"since the date of the marriage the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender;"

That's in very similar terms to s.1(2)(b) Matrimonial Causes Act 1973, the provision which Owens v Owens was all about. As this article notes, it's not that there is entirely no-fault divorce in Scotland, it's that the periods for divorce based purely on separation (1 year with consent, two without) are so much shorter than the corresponding periods in England (2 and 5 years) that fault-based divorce is very rare.
posted by Major Clanger at 10:47 AM on July 26, 2018


This absurd law applies to men and women equally, so it may be medieval but I'm not sure that this particular law is patriarchal.

Women continue to have lower incomes than men, they are more likely to be the primary care-givers for the family's children (and/or elders) and they often forgo or take time away from full-time paid employment to fulfil those responsibilities.

In a society where that is true, any law that requires a couple to not just live separate lives but to actually live in separate abodes for five full years before a divorce can be granted and spousal support distributed is not an equitable law and will negatively impact women far more often than men. I feel quite comfortable calling it Patriarchal.
posted by Secret Sparrow at 1:14 PM on July 26, 2018 [19 favorites]


The fact the husband wants to remain married to a wife that is so unhappy in his company is.... well, it's probably their marriage in a nut shell. So long as he is content with the relationship her state is unimportant.
posted by Gwynarra at 3:13 PM on July 26, 2018 [8 favorites]


Thanks for your input, Major Clanger. I practice law in the United States but have only passing familiarity with your system, so it's helpful to get your firsthand perspective.

With regard to considering conduct in dividing assets: in our system, one consequence is that it can take much longer. Our courts are overworked, they aren't particularly good at keeping to schedules, and our trial-court judges err on the side of liberally allowing parties to ramble through their arguments rather than telling them to sit down and shut up. It's not uncommon for a hearing on some limited issue (not even a trial to determine final judgment) to span several court appearances over several months. The more you let the parties fight, the longer everything takes.

I dislike restricting judicial discretion, but it does make things quicker. There's not an easy answer. As someone who regularly counsels and represents victims, I know it's often difficult and complex to tell someone, "If you want out of this marriage, we can make that happen fairly quickly so long as you don't ask for anything more. If you want more...well, this could take awhile."
posted by cribcage at 5:55 AM on July 27, 2018


Here's another way to look at this.

This woman has been trying to divorce her husband since June 2012. The only thing now preventing this from happening is that he refuses to let her have a divorce; if he would simply consent then their >2 years of separation would already be sufficient for the law.

The law will also accept behaviour by the other spouse that makes it unreasonable to be expected to live with them.

His refusal to let her go should qualify in and of itself as unreasonable behaviour. It is abusive, controlling behaviour taken to the extreme, and the courts enabling it sends a very clear message to abusers and their victims.

Parliament should pass no-fault divorce, sure. But I'm unconvinced that the courts had no way out in this case. A ruling that his stubborn refusal constituted unreasonable behaviour would have set a precedent that effectively nullified the consent requirement in cases like this.
posted by automatronic at 2:39 AM on July 28, 2018 [4 favorites]


I'd like to thank Major Clanger for their excellent contributions to this thread. It is good to have someone with relevant legal knowledge and experience comment on this case, and the particular precision with which UK-trained lawyers write about their profession is always a pleasure to read.
posted by tavegyl at 2:56 AM on July 28, 2018


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