No-fault divorce is a human right

The recent unsuccessful legal battle fought by Tini Owens for a divorce highlights the unfair and sexist nature of UK divorce law

Source: PxHere

With online advertising promising couples divorce settlement fees as low as £37, it may appear as though divorce has become too easy and devalued the sacrament of marriage. Yet claims that we are living in a generation of the ‘quickie divorce’, whilst seemingly true on a superficial level, are fundamentally misplaced.

The recent legal case involving Tini Owens unfounded this myth of a ‘quickie divorce’ and revealed the real truth: that under British law, divorce is the nuclear option. Tini petitioned for divorce in 2015, alleging that her husband Hugh prioritised his work over their home life and showed her little affection. She had grown apart from him, had had an affair and was no longer living with him, and so unsurprisingly she wanted a divorce. However, Hugh refused to consent to a divorce since he adamantly believed that he and his wife had a few more good years to supposedly ‘enjoy’.

The initial judgement made by the courts reeked of institutionalised patriarchy. The judge decided that Tini displayed more ‘sensitivity’ than the average wife whilst her husband was slightly too ‘old school’. Endurable marital conduct had somehow been based upon what could only have been acceptable in the 1940s. Surely there is something wrong in the fact that two men decided for Tini that her misery didn’t not meet their own archaic standard of the level of misery necessary for a divorce.

In the end, Hugh won the case in the Supreme Court on the basis that Tini had failed to establish that the marriage had broken down irretrievably. After all, as one of the judges clarified, being in ‘a wretchedly unhappy marriage’ does not constitute grounds for divorce.

And this is the very problem with British divorce laws that this case highlights. Our current system is predicated on blame, demanding proof of the unreasonable behaviour that led to the breakdown of a marriage. This means in a case like the Owens’, divorce cannot be granted until they have lived apart for an arbitrary period of five years. This legal structure is indicative of the arm of the state extending too far into the personal lives of its citizens, and worse, a legal system which disproportionately harms women.

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The current ‘mend it, don’t end it’ attitude ignores the reality of marriage: that sometimes one party needs to get out, and typically it is the woman, who may feel controlled, manipulated or frightened. Our legal structure should facilitate an easy and safe departure for her; instead, the current system institutionalises marriage as a contract which works in favour of controlling women. A recent study found that US states which adopted no-fault divorce saw an 8-16% decline in wives’ suicide rates and a whopping 30% decline in domestic violence. A century after the introduction of female suffrage, the law still fails to sufficiently protect the rights of women.

No-fault divorces, backed by both Major and Blair’s governments, offer a common-sense approach which give couples real choice and the chance to part amicably. To do this is not to undermine marriage or romanticise divorce; rather, it is to recognise that marriage is first and foremost a social contract, and ought to be treated as such.

The fact that divorce has been made so difficult to attain presupposes that divorce is a situation one must avoid at all costs. Yet whilst evidence does indeed indicate that marriage can have demonstrable benefits, it would be naïve to think that these benefits are automatically conferred on couples by the mere act of walking up the aisle, rather than being a consequence of how spouses treat each other throughout the marriage.

Ultimately, the legal system doesn’t account for the fact that sometimes a marriage breaks down through no fault of one’s own. As a society, we must demand a reform of current divorce law and rid the stigma surrounding divorce. If Tini Owens (or anyone else for that matter) wants a divorce, then neither her husband nor the state have any place in subverting her wishes. Divorce must be a human right, unreservedly upheld. After all, if you don’t have the right to leave someone who is making you deeply unhappy, what value does marriage even have to begin with?

1 COMMENT

  1. There is no such thing as “British divorce law” or “UK divorce law” – the Owens case fell under English and Welsh law – namely the Matrimonial Causes Act 1973. Scotland and Northern Ireland are separate jurisdictions and have their own matrimonial legislation; The Family Law (Scotland Act 2006 and The Matrimonial and Family Proceedings (Northern Ireland) Order 1989.

    You say that the law is sexist – really? Where in the MCA can you point to this in respect of divorce proceedings? The outcome, based on the facts of this particular case would have been the same if the petitioner had been male.

    All the Judges involved in this long, sorry saga have correctly upheld the law – the gender of the petitioner is not relevant. Divorce is a legal process, and that legal process must be adhered to, otherwise what’s the point of having any legislation at all?

    No-fault divorce already exists, with the 2 and 5 years separation facts. I have long advocated for these to be reduced to 1 year (with consent) and 2 years (no consent required), as it is in Scotland. In any case, no-fault divorce would not have helped Mrs Owens as her husband did not agree to a divorce – as is his right. If you remove the agreement of the respondent, you end up with unilateral divorce which could impact severely on those spouses who are financially vulnerable.

    Marriage is a legal contract, not a social one. Cohabitation is a social contract.

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