The clocks went forward this weekend. It's British Summer Time and the Winter gloom has lifted. But in family law circles , the storm clouds are gathering. The recent Court of Appeal decision in the case of Mr and Mrs Owens gives the impression that the clocks have been turned back a century or two.
Mrs Owens has been denied a divorce from her husband of 39 years on the basis that his behaviour was not deemed sufficiently unreasonable to show that the marriage had irretrievably broken down. In the 21st century where autonomy and freedom of choice are (supposedly) valued as principles upon which a forward-thinking democratic society is built, it seems extraordinary that a wife should be forced to continue in a marriage against her will. Surely a society where women were treated as the property of their husbands is one which we have long since abandoned and yet this decision from the Court of Appeal smacks of a medieval concept of ownership of women.
Mrs Owens will ultimately be able to divorce her husband on the basis of 5 years' separation with consent but she must wait another 3 years to be able to do so. In circumstances where she says the marriage has broken down now and her husband says it has not, their inability to agree on this fundamental issue seems pretty clear evidence that this marriage is not working.
The legislation in England and Wales that governs divorce dates from 1973. It is incredible that modern-day marriage is still at the mercy of such an outdated statute and the situation in which Mrs Owens finds herself highlights the inability of the law to reflect social change. There have long been calls for divorce law to be reformed and to end the antagonistic fault-based regime that currently applies. This decision has served to reaffirm the pressing need for Parliament to step in to address our archaic system and to look to introduce no-fault divorce.