In Depth

British divorce laws: are they fair?

Supreme Court ruled woman who wants to divorce her husband must stay married

There are calls for Britain’s antiquated divorce laws to be changed, after the Supreme Court unanimously ruled that a woman who wants to separate from her husband must remain “locked in a loveless” married.

What happened?

Tini Owens asked the court to grant her a divorce from her husband of 40 years, Hugh, who is refusing to split.

Last year the Court of Appeal ruled that Mrs Owens had failed to establish that her marriage had, legally, irretrievably broken down.

Under current UK law, which dates back 50 years, anyone seeking divorce must show that a marriage has broken down due to adultery, unreasonable behaviour or desertion, or live apart from his or her spouse for five years.

The 68-year-old mother of two left the matrimonial home in February 2015, so is therefore not eligible for automatic divorce until 2020.

What was the reaction?

Mrs Owen’s solicitor, Simon Beccle, said his client could not obtain her independence from her husband until she secured a legal separation, and urged the justices to make a decision which would be “forward-thinking and fit with the current social mores”.

Judges raised concerns that previous rulings had not taken into account the cumulative effect of Mr Owens' behaviour on his wife, but in a decision that “deals a blow to campaigners’ hopes for reforming the divorce laws”, says The Times, all five justices said that it was not for them to intervene in the decision made by earlier courts.

Supreme Court President Lady Hale admitted she found the case “very troubling”, while another said she had reached her conclusion without enthusiasm. However, Hale said it was not judges role to “change the law”.

The case “has sparked a debate about whether divorce laws in England and Wales need to change”, says the BBC.

What is the alternative?

Specialist lawyers have long campaigned for the introduction of the “no-fault” divorce and say judges should not compel people to stay married.

Ayesha Vardag told HuffPost UK: “In my view, the law restricting the right to divorce is a fundamental infringement of the rights to private and family life. I would go further and say it is a form of indenture or slavery.

“This kind of law has no place in a civilised society of equals. It springs from a time when men in England were allowed to beat and rape their wives. We do not allow forced marriage. How can we force continuation of marriage?”

Another specialist lawyer, Caroline Elliott, said England and Wales “currently lag far behind other countries with their divorce laws and there is a strong mood for reform, which includes the introduction of 'no-fault' divorces”.

So will the law change?

In fact, parliament has already passed the Family Law Act 1996, which would have introduced a no-fault divorce law. But the statute was never implemented, meaning judicial rulings are based on legislation from 1973.

Earlier this month, Baroness Butler-Sloss, who has described the present divorce law as “not fit for purpose”, introduced a private member’s bill before parliament requiring the government to review the law on divorce and civil partnership dissolution and to consider a proposal for a system of no-fault divorce.

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