The Supreme Court has ruled that unhappiness is not adequate grounds for divorce, keeping a woman locked in what she says is a joyless marriage. It’s high time that our divorce laws were brought into the 21st century.
Feeling trapped in a loveless marriage is the stuff of novels and nightmares. No woman walks down the aisle with the goal of getting divorced; few people enter into a marriage contract, with all the attendant expense and legal and emotional significance, lightly. But we’d all like to believe that if we were in a marriage that made us miserable, we’d be able to get divorced. We’d like to think that if our legally recognised relationship felt untenable, we’d be allowed to escape.
According to the Supreme Court, however, that is not the case. On 25 July, the UK’s highest court ruled that a woman named Tini Owens cannot divorce her husband of 40 years simply because she feels their marriage is unhappy. Overwhelming misery, it seems, is not adequate grounds for divorce in modern England and Wales.
It’s rare for a divorce case to go all the way to the Supreme Court, but that’s because Owens’ husband Hugh has taken the very unusual stance of refusing to agree to their separation. Despite the fact that his wife left him in 2015, Hugh insists their marriage is still salvageable.
As a result, Owens, 68, is totally stuck. Because under English and Welsh law, if your spouse doesn’t consent to a divorce, it doesn’t actually matter how doomed you feel your marriage is. You can only get divorced without their approval if you can prove your marriage broke down for one of three reasons: that they were adulterous, unreasonable or deserted you.
In a string of court appearances over several years, Owens has tried to prove that Hugh has acted unreasonably. In 2016, she brought no fewer than 27 examples of what she perceived to be his unreasonable behaviour before a family court judge, including the fact that he was frequently “insensitive” and “constantly mistrusted” her, and that she felt unloved.
“The simple fact is that I have been desperately unhappy in our marriage for many years,” she said.
But Hugh disputed her claims, and the judge overseeing that case refused to grant Owens a divorce, even informing her that her allegations of unreasonable behaviour were “of the kind to be expected in marriage”.
As a line, that really stings. It implies that a woman who doesn’t want to put up with a cold and suspicious marriage is being a bit of a diva; that she’s setting her standards too high. It’s straight out of Revolutionary Road.
If you can’t prove that your spouse has been adulterous, unreasonable or deserted you, there is one other way to get a divorce without their agreement: you can live apart for five years or more. But this is little help to Owens, who only (‘only’) moved out of her marital home three years ago. Consequently, she’s trapped for two more years, unable to legally separate from a man she clearly has no desire to be attached to.
Owens’ tale is an alarming one. For starters, it reminds us that a long marriage doesn’t necessarily equal a happy one. More importantly, though, it highlights just how frighteningly archaic our divorce laws are in England and Wales.
Imagine falling out of love with someone, feeling utterly wretched in your marital home, and being told that you can’t get divorced because a court – made up of people who don’t know you, who have not lived through your relationship – doesn’t agree that your spouse has behaved unreasonably.
Alternatively, you might not feel your spouse has behaved unreasonably at all: you might just not want to be married to them anymore, for any one of the million reasons that a relationship can flounder. Under current laws, if your spouse didn’t want to separate, you’d still find yourself trapped. Both scenarios are awful and panic-inducing.
Crucially, it’s not just onlookers who have been disturbed by Owens’ story. Resolution, an organisation representing lawyers working in family law, said the judgement confirmed there is a “divorce crisis” in England and Wales. Others have called for the introduction of a “no-fault” divorce law, which would not require either party to prove wrongdoing by the other.
Even the judges who ruled against Owens seem to have been unsettled by their verdict, with Supreme Court president Lady Hale saying she found it “a very troubling case”. But, Lady Hale added, it is up to parliament to change the law.
And they should. They really, really should. Because what does it say about us as a country, that we force people to stay in marriages that make them desperately sad? Divorce is a part of the world in which we live, and while it’s almost always sad, it’s no longer widely seen as shameful. (In 2016, there were almost 107,000 divorces in England and Wales.) Female divorcees are, blessedly, no longer shunned and slandered as a matter of course, and our cultural approach to marriage has generally evolved from “til death do us part” to “for as long as we make each other happy”.
And so if Owens wants to end her marriage, she should be able to, no matter what her spouse or a court thinks or says. Because if being miserable isn’t grounds for divorce, why would anyone get married in the first place?
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