We live in an increasingly fast-paced and impatient society. We can communicate with each other instantly, by email, text, social media and FaceTime. At the click of a button, we can purchase and download movies, music and annoyingly addictive games to our smart phones. Our lives are incredibly busy and we are always looking for a shortcut, an express queue or a fast-lane.
In a world where we are urging things to be harder, better, stronger, faster, calls for a process to be slowed down are something of an anomaly. The decision of the Indian Supreme Court this week has had just that effect, slowing down the exceptional speed and ease with which a Muslim man in India may divorce his wife. The practice known as “triple talaq” enables a husband to divorce his wife instantly simply by uttering the word “talaq” three times. These words need not be delivered orally and have been confirmed as validly communicated to wives by telephone, text message and Whatsapp messaging. Whilst some couples may see the advantages of a “quickie” divorce, the triple talaq has been declared unconstitutional by a 3:2 majority in the Indian Supreme Court. Commentators have regularly criticised the practise as being both sexist and oppressive and one which can leave wives without proper financial support or provision for the future.
In comparison, the time it takes to achieve a divorce in England gives parties an opportunity to reflect and also time to consider how they will divide their assets. There is no such luxury of time for many wives who are divorced by triple talaq. The wife left with no financial support following a talaq is an extreme example, however, it is one to which the English Court has previously stepped in to assist. Where a party (not necessarily a wife) is left with either no or inadequate financial provision following an overseas divorce and there are substantial connections to England and Wales, an English court can make financial orders in favour of that party to try and redress the adverse financial consequences of the overseas divorce.
In contrast with the speed and ease of a talaq divorce where no reason or justification for the divorce is required, is the English case of Owens v Owens. This case hit the press in March this year after the Court of Appeal refused Mrs Owen’s request for a divorce on the basis that the reasons she gave for wishing to divorce her husband did not amount to unreasonable behaviour. Unless a couple is prepared to wait two years to start divorce proceedings, divorce law in this country requires one party to ‘blame’ the other for the breakdown of the marriage and most divorce petitions are issued on the basis of one spouse’s unreasonable behaviour.
It has long been the practice of divorce lawyers to draft examples of unreasonable behaviour in the divorce petition which are as mild and benign as possible with the objective that:
- they can be agreed between the parties;
- they meet the threshold for what is considered unreasonable behaviour; and
- they do not antagonise or unnecessarily upset the ‘blamed’ party.
This helps to ensure an amicable footing from which to discuss the often more contentious topic of dividing the assets. The Owens case has moved us on from the calm waters of mild and agreed examples of unreasonable behaviour to the rougher seas of requiring parties to put forward more robust and disagreeable particulars in order to have certainty that the court will not reject their petition. Not only are more aggressive particulars likely to irritate and annoy the spouse on the receiving end of them, they are also more likely to be defended - resulting in a contested process, which is far slower altogether.
Mrs Owens is taking her case to the Supreme Court and the decision of that court will surely impact the way in which we advise clients wishing to divorce.