As the call for no-fault divorce intensifies, the next ruling on the Supreme Court agenda on Wednesday is the case of Owens vs Owens, arising from Mrs Owens’ appeal against the refusal of the family court judge to grant her a divorce from her husband of 39 years because her reasons were not extreme enough.
If the Supreme Court does not overrule Judge Toulson, future proceedings at court could turn into soap opera worthy of the worst of reality TV.
Judge Robin Toulson dismissed Mrs Owens’ petition because he considered her complaints ‘were minor altercations of the kind to be expected in marriage’ – regardless that her husband’s behaviour had left her miserable for years. This was a clearly a subjective opinion that flies in the face of the objectivity a judge is expected to apply.
Judge Toulson was not sufficiently moved by Tini Owens description of the torment of her married life, despite her husband’s ‘continued beratement’ of his wife, his insensitive manner, mood swings and complete lack of affection. These details were not damning enough to move the judge.
If the need for fault – either adultery or, as cited by Mrs Owens, unreasonable behaviour – continues, it follows that a spouse seeking divorce may have to reveal the deepest intimacies of their married life to convince a judge that they have grounds. In other words, get down and dirty with every lurid detail they can think of to stand a hope of succeeding.
Social media has long been blamed for the fact that society collectively has become less embarrassed, ever ready to share very personal details with whomever can be bothered to read it. It appears this attitude now extends to the courts.
Fifty years ago, people simply did not discuss intimate details of their lives in public. Most probably didn’t know how much their friends argued, let alone how much sex they were having. Obviously, what embarrasses people changes from generation to generation, but the risk of having to bare every personal detail publicly is that we become desensitised to what hurts other people. Such hurt would likely create even more animosity between parties, leading to more defended proceedings, cross petitions and higher legal fees.
Existing protocol stipulates that to reduce animosity, couples should try to agree what is included in their divorce petitions, particularly involving unreasonable behaviour. If Tini does not succeed, a spouse forced to air even dirtier, more disparaging laundry in public will make the other party even less willing to agree the details.
These unpleasant and antagonist particulars will generate more contested divorce proceedings before the court than ever before, with hearings becoming equivalent to the worst of reality TV. The law should not be party to that.