Comment: Act now to set islanders free from ‘unhappy’ marriages

Tuesday 14 August 2018

Jersey’s nearly 70-year-old divorce law could lead to islanders being locked in ‘loveless’ marriages against their will.

It’s a grim thought, but one that ‘Publius Exon’ - a Jerseyman and lawyer at a top London firm - warns could easily be a reality if the island’s legislators don’t seize the opportunity to make landmark reforms to how residents can apply for a divorce.

In his first Express column analysing issues from the outside of the island looking in, he calls on the States to act…

“The UK Supreme Court recently ruled that Tini Owens would not be granted the divorce that she had wanted in order to exit a marriage that made her feel 'unloved, isolated and alone.' The court’s reasoning was based on the wording of the Matrimonial Causes Act, a piece of legislation over 40 years old which governs English divorce law. While you may think that this is an old piece of legislation to govern something so important in society, the Jersey legislation dates back to 1949. 

Pictured: Tini Owens was not granted a divorce from her husband, Hugh Owens, despite claiming that she felt “unloved, isolated and alone.” (PA)

“Mrs Owens tried to show that there had been an irretrievable breakdown in her marriage to Mr Owens because he had behaved in such a way that she could not reasonably be expected to live with him. This is the most common argument that divorcing couples use in the UK and it is incredibly rare for a judge to reject a party’s evidence of their spouse’s so-called ‘unreasonable behaviour’.

“However, in this case, the judge held that Mr Owens’ behaviour was not sufficiently unreasonable that she could not be expected to live with him. The Supreme Court upheld the judge’s verdict and made it clear that Mrs Owens would have to stay married to Mr Owens.

“It is likely that this case would have been decided the same way if it had come before a Jersey court, as Jersey law also has similar wording around the ‘unreasonable behaviour’ of the spouse. This means that a spouse may not be granted a divorce unless they can satisfy another of the conditions set down by the law, which are generally more onerous.

Pictured: Lady Hale, president of the Supreme Court, said that judges could not “change the law.” (PA)

“The Owens case caused unease among the UK Supreme Court as it effectively means that one party may have to remain married to the other party against their wishes, something which strikes many people as being wrong. The judges were bound by the wording of the law and said that it was for the UK Parliament to change it.

“Is there an alternative to the current system? The States of Jersey have been discussing divorce law reform for years, and there was a consultation at the start of this year. However, no specific proposals have been made about how divorce law should be reformed.

“The States should seize this opportunity to introduce wholesale reform of divorce law. The key reform should be to allow divorce at the request of one or both parties to a marriage, so-called ‘no-fault divorce’.

“Although there are worries that this would undermine marriage by making it easier for people to divorce, the alternative is either people stuck in unhappy marriages, unable to move on with their lives, or for a party to try their hardest to find examples of the unreasonable behaviour of their spouse, which risks poisoning the entire divorce process and any hopes of having a relationship thereafter.

69% of Brits support 'no-fault' divorces, yet in the news a lady named Tini Owens is unable to get a divorce until 2020 because her husband won't agree to it and her case does not meet any of the acceptable legal grounds for divorce https://t.co/I1k6kNDy3T pic.twitter.com/4l60YTdcnk

— YouGov (@YouGov) July 25, 2018

“As England will likely have to look at this issue, wouldn’t it be nice, for once, for Jersey to take the lead on modernising legislation, and provide an example for England, rather than it always being the other way around?”

The opinions expressed in this piece are those of the author and not of Bailiwick Express.