Are we ready for divorce on demand?

It is rare for a divorce to be defended. Of the 114,000 petitions filed in 2016 in England and Wales, just 17 went to a contested hearing. Among them was the case of Tini and Hugh Owens, who were married in 1978. Mrs Owens wanted a divorce but Mr Owens declined to agree. Normally this would not have prevented the court granting a decree because of the irretrievable breakdown of the marriage, grounds for divorce under the Matrimonial Causes Act 1973. However, in order for this to be established, certain conditions need to be satisfied, such as adultery or “unreasonable behaviour”.

Mrs Owens, who admitted she had had an affair, relied on the latter, which her husband denied. The family court judge took the view that her allegations of unreasonableness were flimsy and had been exaggerated and rejected the petition. He said she was “more sensitive” than most wives and Mr Owens was “somewhat old school”. The case yesterday ended up in the Supreme Court.

This was something of a surprise, since the law appeared to be quite clear. However, the court justified hearing the case in the belief that it would raise a novel issue about the interpretation of the concept of “unreasonable behaviour”. Mrs Owens’s argument was that, in not acceding to her demand for a divorce, her husband’s behaviour could be considered unreasonable because of the effect it had on her. However, she abandoned this position, leaving the court to rule against Mrs Owens, who no longer lives with her husband and will have to wait until 2020 for her divorce.

The judges made it clear that they were unhappy with this. Lady Hale said it was “a very troubling” case. The courts do not make the law but can exert pressure on those who do. Have the mores of society changed since 1973 to the point where there should be no conditions for divorce? If someone wants out, should they be forced to stay in an unhappy relationship?

On the other hand, why should someone be divorced against their will when they have done nothing wrong, other than to have a partner who has had enough of them? In truth, most divorces on the grounds that one party can no longer be reasonably expected to stay within the marriage are phoney because it is not necessary to prove unreasonable behaviour, only for one side to accept that it happened. But the alternative is divorce on demand, which is what the court is asking MPS to consider. Is the country ready for that?