The antediluvian state of divorce law

'Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be,' said Sir James Munby, president of the Family Division, in Owens v Owens [2017] EWCA Civ 182.

Where to begin. Perhaps the best place to start is with the facts of this bizarre case, which perfectly encapsulates the archaic nature of divorce law.

Mrs Owens was (or, more pertinently, is) indeed 'wretchedly unhappy' in her 39-year marriage. As many spouses do in such a situation, she sought a divorce. She sought to rely on the fact of Mr Owens' unreasonable behaviour in order to prove that the marriage had broken down irretrievably, citing typical examples such as a lack of 'love, attention, and affection', arguments, and disparaging comments. Mrs Owens had in fact moved out of the former family home in February 2015 and had since been in an on/off relationship with a third party.

The first, relatively unusual fact of this case was that Mr Owens defended the divorce proceedings, denying that the couple's marriage had irretrievably broken down. The defended divorce is not an everyday occurrence, to my mind for two reasons: (a) usually a family solicitor will not advise a client to defend a divorce and (b) although one party may not wish to divorce, they usually accept that if their spouse does, the marriage is at an end.

His Honour Judge Tolson QC found that the marriage had indeed irretrievably broken down and confirmed that, in his view, Mrs Owens 'cannot go on living with [her] husband'. Notwithstanding this, he dismissed her petition as she had, in his view, failed to prove his 'unreasonable behaviour', describing the allegations she had made as 'minor altercations of a kind to be expected in a marriage'.

Mrs Owens appealed the decision, and it was recently upheld. The 'reassurance' she was given was that she could always try again in 2020, relying on the fact of five years' continuous separation without her husband's consent.

Stripping away this construction of the law, is the underlying message here not seemingly that people should 'give it another go' or adopt a stiff upper lip by rallying in their miserable, loveless marriages? It seems an incredible state of affairs in this 'modern' age that the law can still be so paternalistic to the point of patronising. How can Mrs Owens' autonomy be so undermined by legislation?

Sir James Munby did comment that 'it is well known that many hold the view that this is not what the law should be, that times have moved on since 1969, and that the law is badly out-of-date, indeed antediluvian'. This sentiment is keenly felt by many '“ there are numerous proponents of the introduction of a 'no-fault divorce', but the concept has yet to make it through the Commons.

Not only would its introduction avoid, frankly, ridiculously outdated situations such as this, but it would have wider reaching benefits, such as removing the need for (put simply) separating spouses either to wait two years to divorce or instead provide one another with a list of their gripes '“ undoubtedly souring relations at the outset. This case is unusual, an anomaly even, but this does not change the reality of the law, its application, and effect. In illustrating the outdated situation, Owens v Owens only strengthens the argument for reform.

Pippa Allsop is an associate at Michelmores @MichelmoresLaw www.michelmores.com