On Wednesday morning, judges at the Supreme Court unanimously rejected a woman’s plea to divorce her husband on the grounds that she is "desperately unhappy" in their marriage.
Tini Owens petitioned for divorce from Hugh Owens – to whom she has been married for 40 years – in 2015, citing his "insensitive" treatment of her and "constant mistrust" as just some of the reasons why their marriage had broken down. Because her husband disagreed and denied her allegations, the family court – which ordinarily deals with divorce – ruled against Tini; her case moved to the Court of Appeal, where it was again dismissed, and from there to the Supreme Court, where she was told yesterday that she must stay married to Hugh until 2020 before she can divorce him without his consent.
Now, we must not speculate on the kind of man who would force his demonstrably unhappy wife to remain legally bound to him against her will. Tini and Hugh’s marriage is none of our business. But their case has trained the spotlight on the horribly outdated – some would say wildly unfair – laws surrounding divorce in this country.
Currently, if you live in England or Wales and want to divorce your husband or wife, you must submit evidence of one of the following five grounds: adultery, unreasonable behaviour (such as physical violence, verbal or substance abuse), desertion, two years of separation (provided both parties agree to the divorce), or five years of separation (if one party disagrees, as in the case of Tini and Hugh). Eagle-eyed readers will note that there is no provision in this list for a marriage that has simply run its course. What, then, is a girl who has ceased to care for her spouse’s morning breath but would rather not dash out and bang the window cleaner to do?
I left my husband three and a half years ago when I was 28. Neither one of us did anything wrong, so to speak (he might disagree but hey, I'm driving this keyboard); it just dawned on me slowly, the way your eyes adjust gradually to the light, that I was no longer 'in' our relationship. I wanted out. He felt differently but because he is a good and kind man, agreed to let me go. Once the dust of the initial bombshell had cleared, we were both keen to move on with our lives and so, rather than separate and spend two years dragging around the corpse of our marriage, I offered to ham up my 'unreasonable behaviour' for the benefit of the courts.
Somewhere in my house, stuffed in a drawer among old payslips and defunct phone chargers, there is a copy of our divorce application form. In the box where my husband, as the petitioner, was required to elaborate on my unwifely comportment, are written words to the effect of "frequent and sustained heavy drinking" (a little bit true) and "refusal to participate in reasonable family activities" (a little bit false). This was enough to convince a judge that our matrimony was far from holy and within about six months of submitting our application, we were no longer wed.
If that sounds flippant, let me assure you otherwise. The entire process – from painful conversation to decree absolute – was tortuous and unpleasant. Even now, years down the line, I can only really discuss it with one eye closed. And I was lucky; I was happy to shoulder responsibility, and my husband and I remained amicable throughout. Yet the fact of the matter is that I should not have had to shoulder that responsibility – our relationship ended, as relationships do, through no great fault of our own – and apportioning blame where there is none to satisfy an antiquated legal requirement reduces a pair of adults who have made a considered decision to schoolchildren arguing over who pulled who's hair first. Indeed, Nigel Shepherd, the former chair of Resolution, a body representing family lawyers, told the Guardian: "Our current laws can often create conflict in divorce – forcing couples to blame each other when there is no real need."
England and Wales lag behind other Western countries in their absence of 'no-fault' divorce. The Netherlands has it. The USA has it. Even Scotland has it. Twenty years ago, the government did attempt to introduce legislation allowing divorce without blame but had to roll it back after requirements for both parties to attend 'information meetings' to encourage reconciliation proved untenable. And there's the rub; our lawmakers are so protective of marriage – and what they believe it stands for – that they cannot pass a much-needed reform without spitefully insisting its beneficiaries jump through hoops.
Much like the BBC and the Post Office, marriage in this country is a monolith; synonymous with a mouldy old notion of 'Britishness' which has long passed its sell-by date but which a small handful of people – often those in power – persist in pouring over their Weetabix. And as with those two beloved institutions, reform is hard-won; the Marriage (Same Sex Couples) Act, for instance, came into force just four years ago. Why does the government hold fast to an outdated concept of marriage that fails to acknowledge progress in society and – crucially – ignores the nature of relationships – the very thing it enshrines in law?
We must accept that, in 2018, the reasons why people get married are different from years ago. This is not a Jane Austen novel. Women earn their own money; a man's heir will not be declared illegitimate if their parents have not walked down the aisle. In 2015, there was an 8% drop in religious wedding ceremonies between straight couples, while just 44 of the 6,493 same-sex couples who married did so in a religious ceremony, thus faith does not always play a part. Love is as big a factor as any – frequently, it is the biggest – and sometimes (often) love ends. The legislation must recognise that and provide for couples who fall out of love rather than trapping them in marriages which, like Tini Owens', make them unhappy.
Opponents of 'no-fault' divorce argue that it would lead to divorce 'on demand'. Frankly, this is insulting. Even in the most amicable situation, ending a marriage can be shattering. It is an enormous upheaval, emotionally and physically, as one or both parties inevitably has to leave their home. It is expensive; you can get divorced without a lawyer, as my husband and I did, but it still costs a minimum of £550. There will be recriminations from family and friends on either side. You may experience a sense of failure. In short, it is not a decision that anyone would take lightly – I did not wake up one morning, yawn, stretch and think, 'I'm done with this marriage lark. Time to get divorced!'
For many years, marriage has resembled a secret society: hard to get into, should you fail to meet the requirements; even harder to leave. A cultural Hotel California, if you will. It is time we built a new exit.