The case of Owens v Owens rocked the legal world in late July, when the Supreme Court decided that Tini Owens could not divorce her husband, despite the court recognising that this could leave her “trapped in an unhappy marriage.” Her husband, Hugh John Owens, had sought to defend against Mrs Owens’ petition for divorce on the grounds that “although never emotionally intense, the marriage had been successful and that he and Mrs Owens had learnt how to “rub along”. In ruling against Mrs Owens, Lord Wilson said the decision “generates uneasy feelings”  and suggested that Parliament should consider statutory change . Yet, bearing in mind that statutory change may take some time, is the right to leave an unhappy marriage not also a human right?
The case was exceptional because the great majority of divorces are uncontested- of the 114,000 petitions for divorce filed in England in Wales and Wales in 2016, the number which proceeded to a final, contested hearing was 17 (Owens v Owens ). Most divorces are conducted on a purely written basis without either party attending court with the judge all but “rubber-stamping” undefended divorces.
Yet the law of divorce in England and Wales as set out in the Matrimonial Causes Act 1973, is rather more complex. A divorce can be granted by the court only when there has been “irretrievable breakdown” of the marriage. Yet the marriage cannot be held to be irretrievably broken down, unless the party seeking divorce can prove one of five facts. In Owens v Owens, as in the majority of divorces, the fact relied upon was that it was “the respondent has behaved in such a way that the petitioner [the person seeking the divorce] cannot reasonably be expected to live with the respondent” (s.1(2)(b) of the Matrimonial Causes Act 1973.
Yet where do human rights figure in all of this? There is perhaps a visceral reaction, among those who view marriage as a contract between equals, that to deny a person the ability to leave a marriage is a breach of their Article 8 rights to respect of private life. Yet the European Court of Human Rights has repeatedly rejected the existence of a human right to divorce.
In the cases of Andrzej Piotrowski against Poland (2016) (n° 8923/12) and Babiarz v Poland (2017) (n° 8923/12) the ECtHR has reiterated that neither Article 8 nor Article 12 grant a right to divorce. The majority in Babiarz found that whilst Article 8 protected against arbitrary interference in private or family life, it was not the case that it prohibited all interference. Furthermore “In the area of framing their divorce laws and implementing them in concrete cases, the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention and to reconcile the competing personal interests at stake.” As regards Article 12, the court quickly dismissed this as a right to marry and to be free of excessive restrictions to marriage, and not as a right to divorce .
Yet Babiarz also contains two powerful dissents, by Judges Sajó and Pinto de Albuquerque. Sajó in particular urges the court away from placing undue reliance on the travaux préparatoires of the ECHR, where discussion was had about the need to avoid endorsing divorce, and to recognise the Convention as a “living instrument” [1-4]. He expresses the nub of the human rights concern in cases where divorce is denied: “The claim to keep someone as spouse is not of the same weight as the autonomy-based demand of the other person to be free, and it is asymmetrical because it imposes an undue restriction, whereas leaving is a right accorded to both parties equally.” .
There is at present a bill introduced by Baroness Butler-Sloss into the House of Lords which calls upon the Lord Chancellor to review the Matrimonial Causes Act, with the idea of removing the need to prove any fact other than irretrievable breakdown of the marriage. This is encouraging, but legislative change is needed not only to reflect changing social values, but also to protect the autonomy human rights of those who enter into marriages.