Once the initial shock of being informed that a marriage has run its course has passed, most spouses will accept the inevitability of divorce, and, however reluctantly, engage in the process. However, in a very small number of cases (perhaps 1% per year) a spouse may decide that they do not accept that the marriage is over and seek to defend their spouse’s divorce petition and prevent the divorce from taking place. Defending a divorce petition can be a lengthy and expensive process.
Owens v Owens
In recent times, the most notorious defended divorce (in which this firm acted) was the case of Tini Owens seeking to divorce her husband Hugh. In the usual way, she drafted her divorce petition on the basis that the marriage had irretrievably broken down and included particulars of her husband’s behaviour to support her ground for divorce – that he had behaved in such a way that it would be unreasonable to expect her to continue to live with him. It has long been accepted practice to keep these allegations as uncontroversial and anodyne as possible to avoid raising the temperature and souring proceedings.
However, Mr Owens refused to accept her allegations against him and defended the divorce contending that he did not want the marriage to end. A judge agreed with him that the cited grounds were insufficient to evidence that the marriage had irretrievably broken down and, despite appeals to the Court of Appeal and then to the Supreme Court , Mrs Owens was refused a divorce.
Under the current law it was, of course, open to Mrs Owens to get her divorce without Mr Owens’ consent. However, she would have to wait for five years after their separation in order to do so. This is a long time to effectively put one’s life on hold.
The New Law
The case sparked widespread concern from family lawyers and the general public. The court in refusing to grant Mrs Owens a divorce effectively forced her to remain in a loveless marriage against her will.
Many family campaigners have long argued that the current fault based system is wrong for many reasons. It is currently necessary to prove that the marriage has broken down irretrievably and that one of five facts applies – (a) adultery, (b) that the other party has behaved in such a way that you cannot reasonably be expected to live with them, (c) desertion, (d) separation for two years and both parties consent and (e) separation for five years. So without waiting for 2/5 years the only way to obtain a divorce is to effectively blame the other party for the marriage breaking down. In many cases this simply does not reflect the reality that both parties have contributed to the relationship sadly reaching an end. In other cases, this requirement to blame the other party can lead to acrimony between the parties which makes it more difficult to focus on the important unravelling of their financial affairs and sorting out sensible arrangements for their children.
From 6 April 2022 the law will change and we will have a new system where there is no requirement for one party to blame the other for the breakdown of the marriage. The only ground for divorce will be that the marriage has irretrievably broken down. Either party will be able to petition for divorce – or they can do so together – and the other party will no longer have the opportunity to object. If one spouse decides that the marriage is at an end then it will be dissolved.
What if I don’t want a divorce?
The new law takes away the ability to oppose a divorce. It might be argued that this is sensible as if one party regards the marriage as being at an end it seems unfair, as in the case of Mrs Owens, to force that person to stay married.
Opponents to the new law argue that it makes it too easy to get a divorce and that by making the process easier this may lead couples to abandon marriages without proper efforts to see if the marriage can be saved. Baroness Summerskill of Kenwood writing about the last major change in divorce law in 1969 described that Act as a “Casanova’s Charter” enabling husband’s to leave their wives against their will, commonly for a younger woman and leaving them in a precarious financial situation. However, in modern times such arguments might be seen as anti-feminist and patronising and the law in relation to finances on divorce has developed to ensure fairness and equality for both parties.
It is also a critical component of marriage that both parties consent to it. If one party is no longer consenting to remaining in the marriage there is certainly a good argument that they should be able to extract themselves. Under the new law both parties will equally have the opportunity to end the marriage should they choose to. And in a new step they can jointly file for a divorce.
However, there is also an argument that divorce will become one of the only types of legal proceedings where the Respondent is not afforded the opportunity to defend themselves within those proceedings. This could be said to be at odds with concepts of the Rule of Law. In “The Law’s Own Virtue”, Joseph Raz considers what virtues the law should have and argues that the rule of law requires that legal decisions and rules be anchored in stable general legal doctrines. He argues that the rule of law should “allow proper opportunities to consider relevant arguments and information”. The new law will not permit those arguments to be heard – if one party wants a divorce then they will be able to obtain it and the other party will not be able to mount an argument against it.
In reality, the argument is usually stale. In the vast majority of cases the parties will agree that a divorce should take place. The new law will simply make that process more streamlined and less acrimonious and is therefore likely to be of benefit to the vast majority. Simplifying the requirements and the procedure will also benefit those who are encountering the system as litigants in person. Albeit not a significant reduction in the context of their legal costs as a whole, for the paying client this will result in a saving in legal costs.
In some instances the ability to defend a divorce is used as a tactic. For example, where a spouse is divorcing an abusive partner the ability to defend the petition can be a way of continuing that abuse. The new law will take that power away.
For those who do not wish to be divorced and would have been willing to defend the marriage in the same way that Mr Owens did, the opportunity has now been taken from them. It might be argued that the new law will simply reflect the reality that it takes two to remain in a marriage and if one party has effectively checked out can it really be said that the marriage subsists? However, there will be a very small minority of individuals who will feel frustrated by their inability to defend their divorce and to prevent it from happening. All things considered, and bearing in mind this is the first major overhaul of the divorce law since 1969, it is difficult not to regard this as a major positive step forward.
  UKSC 41