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Happily Ever After?

Why getting a divorce in the UK is more complicated than you think.

“bride and groom photo” by rawpixel on Unsplash

Marriage laws in the UK have been evolving since marriages first started being officiated by the Church, in the 12th Century. The 20th Century in particular brought numerous updates to the statute to make marriage more equal and reflective of society’s expectations and needs. But there are still some anachronistic terms and conditions, particularly regarding divorce. A glaringly obvious, yet uncommonly mentioned, example is in the news right now: Mrs Tini Owens wishes to divorce her husband because she is no longer happy in their marriage — but the law forbids it (until 2020). There’s more on this below, but this is not the only case where UK divorce law is lagging behind the times and adding to people’s heartbreak.

What are the grounds for divorce in the UK?

A couple cannot decide by mutual consent that they wish to divorce because the relationship is no longer working. One member of the couple must begin proceedings to prove that the marriage has irretrievably broken down under one of these five reasons:

● Adultery
● Unreasonable behaviour
● Desertion
● 2 years separation with consent
● 5 years separation (no consent required)

The process is inherently adversarial, given that it requires one party to accuse the other of wrongdoing (which they can contest), or that the couple must separate and allow a period of time to pass before the marriage can officially be ended. If you’re fortunate enough to have a spouse that consents to your petition for divorce, you’ll still need to wait two years before you can begin proceedings. And if they do not give their consent, you have to spend five years separated but still married before you can even apply for divorce.

There is no option for a “no fault” divorce in UK law. Even if a divorce is not contested in court, and most aren’t, the system is still set up to pit one party against the other. In the 21st Century, we still cannot divorce amicably. Looking at the list above, you may think that if you’re going to undertake a commitment as serious as marriage, you should be prepared to have some pretty good reasons for ending it. But these rules are so restrictive that they can trap people or keep them in limbo while they are waiting for time to pass, or their ex-partner to concede defeat.

Mrs Owens’s unhappy marriage

Tini Owens wishes to divorce her husband because the marriage is loveless and had broken down. That is good grounds by itself, with no further detail — but the law in England and Wales makes it more complicated. She was unable to convince the court that her husband had exhibited “unreasonable behaviour”, and he refuses to consent to a divorce, even though they have been separated for three years now. Mrs Owens is 68 and wishes to move on with her life — understandably given her age and limited time and energy for a fresh start.

There’s nothing wrong with striving to make a marriage work, and Mr Owens’s pleas are also understandable. But Mrs Owens doesn’t want this relationship, and forcing her to stay isn’t going to bring back the magic. In any other partnership besides marriage, we’d deem it unreasonable and inappropriate to maintain this sort of hold over someone, but for married couples the law supports the partner that refuses freedom for their spouse. It’s easy to see how this could be abused by a manipulative and controlling person.

It’s worth noting that Tini had an affair in recent years, but because her husband is not petitioning for divorce, this has no bearing on the application. She considered divorcing her husband in 2012, but did not pursue it at the time. They continued to live together until 2015, which sadly contributed to the problem. If she’d moved out in 2012, she could have been divorced by last year. Because she didn’t leave the marital home until 2015, she must wait until 2020 before she can apply for divorce.

When she did make a divorce application, in May 2015, she claimed that “her husband had prioritised his work over their home life, his treatment of her lacked love and affection, he was often moody and argumentative, he had disparaged her in front of others, and that she had grown apart from him.” Evidently this wasn’t enough to convince the court of unreasonable behaviour, and her husband denies these claims anyway. But refusing one’s spouse ‘permission’ to divorce seems pretty unreasonable to me in itself. For all the progress we’ve made with marriage laws, our conditions for divorce are lagging behind the times.

And it’s the law that’s at fault, rather than an unusual court ruling. Unhappiness or falling out of love are not legally acceptable grounds for divorce in England and Wales. Although they may not have agreed with the law, the judges in this case were compelled to act upon the law as it is written. There was no malice or singling out of anyone — the law is outdated.

Same-sex marriages

The Marriage (Same Sex Couples) Act 2013 was supposed to elevate same-sex marriage to the same status as legally-binding opposite-sex marriages. Prior to this, civil partnerships were the closest option to marriage for same-sex couples, a stop-gap put in place in 2004 to appease conservative voters and politicians. There were very few practical differences between civil partnerships and same-sex marriage, but one of those differences has persisted in its upgrade to full marriage status. Weirdly, ‘civil partnerships’ aren’t the same thing as ‘civil marriage’ — you’d’ve thought they’d use a sufficiently different name for it, but no. The nomenclature is as confusing as the legislation.

The grounds upon which a civil partnership or same-sex marriage can be dissolved are similar to those for ‘traditional’ marriage, with one important omission:

“You must prove to the court that the civil partnership has ‘irretrievably’ broken down — that is broken down on a permanent basis. You must be able to prove at least one of the following things:
● your partner has behaved unreasonably
● you and your partner have lived apart for two years, and that you both agreed to the dissolution
● you and your partner have lived apart for at least five years, if only one of you agrees to the dissolution
● your partner deserted you at least two years ago.”
Source: Citizens Advice

Note that there’s nothing here about adultery — meaning that same-sex couples don’t have the option to divorce on this (relatively common) criteria. Interestingly, Citizens Advice lists “being sexually unfaithful” as an example of unreasonable behaviour, which seems sensible and does not specify which genders need to be involved. That’s good, right? Not exactly.

For civil partnerships (which are still legally valid, still performed, and not automatically upgraded to marriage status), adultery is not a reason for dissolution by itself. But even worse than that, in same-sex marriage, the grounds for divorce are exactly the same as for an opposite-sex marriage. Which should be ok, right…?

Nope. The Divorce Reform Act 1969, which defines the grounds for divorce, is worded in such a way that adultery can only legally occur between a man and a woman — which is not much use if your spouse has cheated on you with someone of the same sex as them. Yes — this affects “traditional” marriages too, but is likely to disproportionately affect same-sex couples.

Marriage and Gender Reassignment

In spite of these flaws in marriage and divorce legislation, it would seem that we’re broadly on the right track. With each passing Act marriage becomes more inclusive and relevant. But there are some areas where it gets even more complicated, with horrifying consequences.

Prior to 2014, when The Marriage (Same-Sex Couples) Act 2013 was adopted, a married couple would be forced to annul their marriage if one of them legally changed gender. They could then register a civil partnership in order to get back some of their rights and recognition of the relationship, but it’s not the same and it caused unnecessary pain for around 30 UK couples.

So you’d think that legalising same-sex marriage would resolve the issue — but you’d be wrong. In yet another example of the government applying piecemeal reform to a complex overarching matter, the law now states that in order for a married person to legally change gender, their spouse must give permission for the marriage to continue. In practice this means that one of the parties has control over whether the other can legally transition or not. This is known as the “spousal veto”.

It gets even worse. Let’s say that the only way for a couple to resolve such an issue is to divorce. Maybe the non-trans partner feels they could not be married to someone of the new gender, or that their partner has changed so much that they seem like a different person. Or perhaps they’re transphobic or want to control their spouse — an easy way to do this is by initiating or contesting divorce proceedings.

In the environment in which we live, transgender issues seem new and strange, in spite of the fact that transgender people have existed throughout history and across cultures. Our sexual preferences are influenced by society’s norms, although we have no way of knowing to what degree. In future, it may be less unusual for someone’s spouse to change gender, and it might become more acceptable to society (I hope so).

But sadly, divorce might be a realistic option for a couple in this situation — and they can divorce in the same way as any other couple, gay, straight, trans, whatever. It’s just that the spousal veto puts all the power into the hands of the non-transitioning party, either to deny their partner the right to legally transition, to drag them through the courts if they apply for divorce, or to contest a divorce application made by the transgender party. And if one of the parties chooses to use the court system to antagonise and abuse their partner, little can be done — those proceedings are going to go ahead anyway.

Oh, and in these cases a transgender person cannot apply for gender recognition until after the divorce is finalised.

Religious marriages

In the UK, it’s not just same-sex and transgender marriage that is less equal than other types. Many religious weddings are not legally binding — and you may be shocked to know how broad this problem is. Only weddings conducted by an Anglican vicar, e.g. in the Church of England, can happen entirely separate from the civil register and still be legally binding. For all other religious weddings, an ordained minister can act as the officiant and register the union, but notice must be given at the register office at least 28 days in advance.

Not everybody knows about this, and all non-Anglican Christians are affected by this — which was the most surprising thing for me, I had just assumed that all Church weddings were legally binding. And there’s the problem: a lot of other people think this too. Canon law (or Sharia, Halakha or whichever religious legal system is relevant) is important to those who follow it, but it has no standing in UK law.

Some spouses (and it’s typically women who are affected by this) enter into marriages that they do not realise aren’t recognised in law, and then when things go wrong, they have no rights over property or care of any children, and should a medical emergency arise they are denied responsibility for a partner unable to make their own decisions. For all its faults, marriage actually protects both parties — and you don’t realise you need that protection until things go wrong.

Occasionally the problem of religious law is flipped right around so that one party may be happy to grant the other a legal divorce, but not a religious one. Keeping the religious marriage intact means that a devout person cannot remarry and this has been documented as a means that vindictive ex-partners use to control their former spouse. This was legal until 2002, when the Divorce (Religious Marriages) Act was written into law, specifically as a response to this controlling behaviour.

For those in unregistered religious marriages, it’s as if the couple were never married in the eyes of the law. And if a couple is unmarried at all, neither in a religious marriage or a legal one, there are risks. Many people will say things like they don’t need a piece of paper to demonstrate their commitment to each other, but try negotiating that when you’re locked out of your home and your ex has taken the children to stay with their family. If you’re not married, you don’t have the same rights as a married couple.

“Common Law” Marriage?

There is no such thing as a common law marriage in the UK. While marriage can trap some people in abusive situations, avoiding marriage can be a means for a controlling partner to financially abuse their “spouse”.

If you are unmarried and have children together, you have no special rights. It can make things more complicated if you end up in the family court, and it will be the children’s best interests the court considers, not necessarily yours. The court can order your ex-partner to pay for child maintenance, but they don’t have to support you.

In these cases, those involved in the relationship have no legal responsibility to each other, either when together or after a break-up. They also have no rights to inherit property from one another unless a will has been made — if they were married the inheritance would be paid directly to the surviving spouse, with death duties waived. Unmarried couples are responsible for paying inheritance tax should one of them leave their estate to the other.

These responsibilities and rights that are denied to unmarried couples can have far-reaching consequences. Last year, a “widow” was pursued by the bank demanding that she allow the family home to be repossessed even though she could more than afford the mortgage payments. The credit agreement had been taken out in her partners name, and they never married and had not made wills. When the bank discovered that he had died, they required that she vacate the property and return it to them — because there was no proof of her connection to him and for all the lender knew, it could have been an elaborate fraud.

Couples that rent together do not have any rights over the property if they are unmarried — unless both their names are on the tenancy agreement. If an unmarried couple has joint savings, it can become messy and there’s no guarantee of them being redistributed fairly (this is a legal grey area). The same goes for any possessions, like furniture, that were owned jointly.

And on top of all that, if your partner dies and you were unmarried, then you have zero entitlement to a state pension based on their tax payments — only your own as if you were a single person. Bereavement benefits aren’t payable either, as in the eyes of the law you’ve not been bereaved.

But… there is some good news. In Scotland, cohabiting couples have greater protection under the law than those in England or Wales (Scotland is always way ahead of us, always). Cohabiting couples that part ways in Scotland do have rights regarding division of finances and possessions, paying for childcare, and the ability to claim a portion of the deceased’s estate.

I used to be opposed to cohabiting couples having similar rights to married couples for fear of it “devaluing” marriage. But given the complex and unfortunate situations people find themselves in, I now think that the law needs to act to protect as many people as possible, else it can impose cruel penalties on those dealing with death, domestic abuse and breakups.

There is no fairytale ending

Marriage is a wonderful thing, both romantically and legally. Whereas the practice began as a means to form alliances between families and to claim ownership of property (including the bride), it now forms a binding contract between the two people that marry, and it’s more equal than it’s ever been. But due to different aspects of the law having been developed in siloes and glued together with little consideration as to whether they will fit, it’s far from perfect.

Getting divorced is unpleasant no matter the circumstances, but it can be complicated by the mismatch of outdated clauses and new policies. The UK government doesn’t seem to wish to push marriage, or one type of marriage, as the ideal family setup; but for those that do choose it, it would be great if they’d sort the whole mess out and make the legislation not only compatible with the 21st Century, but with itself.

We could all do with a little education on what the marriage contract actually entails — because while that level of commitment is laudable and responsible, the small print can yield some unpleasant surprises. And there’s no escaping it if you choose to remain unmarried — because in those circumstances the law works against you in other ways. Be sure you know what you’re signing up for, and know that if you choose not to make a decision, you are actually making a decision.

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