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26th July 2018

A step towards ‘no fault’ divorce?

The country has been in lively debate since 25 July when the high-profile Owens v Owens divorce judgment was served, refusing Mrs Owens a divorce from her husband. Family law solicitor, Tara Connor, looks at what the case could mean for divorce law in England and Wales.

To use the word disappointed would be an understatement when describing how Mrs Owens must have felt when her husband first challenged her petition to divorce him in May 2015. Much more so this week, when the Supreme Court unanimously rejected her appeal, forcing the Owenses to remain legally married until 2020.

The series of reluctant judgments, whereby judges have been quoted as sharing “uneasy feelings” about the case, have thrown divorce law into the spotlight.

As far as Mrs Owens was concerned, her marriage to Mr Owens had irretrievably broken down and so she removed herself from the family home in February 2015. Being prompted for reasons on which to base a petition for divorce, as is required by the law, she cited numerous counts of unreasonable behaviour by her husband of 40 years.

Choosing to take the rarely beaten path of challenging an application for divorce, Mr Owens succeeded in dismissing his wife’s pleas in a series of court hearings.

How is it that feeling “unhappy, unappreciated, upset and embarrassed”, albeit based on alleged behaviour, is not sufficient a ground to divorce your spouse? The answer, in short, is in the way the law is written.

Divorce law in England and Wales is based on attributing blame and requires ’clear’ and ‘objective’ grounds on which to cut legal ties. How the law was interpreted in this case arguably meant that the supposedly objective bar of actions amounting to unreasonable behaviour was not met.

Whether you find it troubling that in our supposedly modern age someone cannot divorce from their spouse simply because they no longer wish to be married, the law is the law and we must follow it. This is perhaps why the fundamentals of divorce legislation are now the focus of national attention.

Although a crushing defeat for Mrs Owens, who will likely only get her divorce in 2020 when the five years of separation ground will be met, hope has been re-ignited for those wishing England and Wales to follow the Scottish example of making ’no fault’ divorces available one year after marriage.

At present, to obtain a ‘no fault’ divorce, parties have to wait two years to petition for a divorce with consent or five years for divorce without consent. However, the most frequent reason for divorce is unreasonable behaviour as it is immediately available after one year of marriage.

Few family lawyers will be surprised that the current system is being hailed as outdated and unnecessarily adversarial and blamed for stoking the fires for acrimonious and costly splits. The requirement to attribute blame when commencing the divorce procedure can lead to amplified levels of unpleasantness when it later comes to making decisions about children and finances.

‘No fault’ divorces would help the already emotionally difficult matter of divorce be legally dealt with swiftly, amicably and more cost-effectively for all parties.

Whilst Parliament has not shown any appetite for divorce reform, pressure is now on it to make our laws fit for purpose for today’s society, for whom the civil justice system is in place to serve.

For further commentary on this case, or to discuss any divorce-related matter, please contact Tara Connor or another member of Thrings’ Family team.

You can also download a guide to ‘Your first meeting with our Family team’ here.

 

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