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It’s not you – it’s not me: “no-fault” divorce

“No-Fault” Divorce

FRESH calls have been made for “no-fault” divorces, following a high profile case where a wife was REFUSED a divorce despite having separated from her husband.

Mrs Owens

Mrs Owens made headlines when the Court of Appeal refused to grant her a divorce from her husband of 37 years.

Mrs Owens had moved out of the family home in February 2015 and asked the Court to grant her a divorce on the grounds that the marriage had irretrievably broken – citing the fact of her husband’s unreasonable behaviour.

Mr Owens defended the divorce – and His Honour Judge Tolson QC refused to grant it having decided that the unreasonable behaviour allegations were at best flimsy “minor altercations of a kind to be expected in a marriage”.

This decision was upheld by the Court of Appeal. It has meant that Mrs Owens will have to remain locked into an unhappy marriage until she can establish she has lived separately from her husband for a continuous period of at least five years  – unless her Appeal to the Supreme Court succeeds.

Finding fault

Under current law, divorce is based on fault divorce – whereby one party must blame the other unless they wish to have been separated for a number of years.

The Family Law Act 1996 did attempt to introduce a system where it was not necessary to blame the other, but the provisions were never implemented.

Five reasons for a divorce:

Currently, a judge will grant a divorce if a person can prove that a marriage has irretrievably broken down. For this to be accepted, one of five facts must be proven:

  1. Adultery
  2. Unreasonable behaviour
  3. Desertion after two years
  4. Two years’ separation with the consent of both parties
  5. Five years’ separation without mutual consent.

In the event that both parties want to end the marriage, it can make the process more difficult than necessary.

The couple may be stuck in an unhappy marriage for years or feel forced to exaggerate behaviours in order to show that the relationship has irretrievably broken down.

Mrs Owens has now been given permission to appeal to the Supreme Court which has reignited calls for a no fault divorce system to be implemented in England and Wales as a matter of urgency.

Previous calls for no-fault divorce

This is not the first time those in the legal profession have called for reform. In 2014, Sir James Munby, the most senior family judge in England and Wales, called for ‘divorce by consent’.

And earlier this year, research carried out by family law group Resolution found that nine in ten practitioners believe divorce law needs to be modernised to allow for no-fault divorce.

The future of divorce

Supreme Court decisions will set a precedent for the future interpretation of Divorce Law by the Courts.

The ground of appeal is simple “the Law does not require unreasonable behaviour but simply behaviour that Mrs Owen cannot reasonably be expected to live with”.

If Mrs Owen wins her appeal, the emphasis is going to be subjective, namely what the Petitioner can or cannot reasonably be expected to live with rather than what the Judge determines to be unreasonable.

If the Supreme Court does not find for Mrs Owen, there is likely to be an increased clamour for no fault divorce as the implications will be that one spouse can prevent, or at least significantly delay, a divorce, if it suits them to do so.

When divorcing on the fact of unreasonable behaviour, parties will feel that they have to make more serious behaviour allegations to ensure that they achieve a divorce, which runs contrary to what Divorce Lawyers have been promoting in recent years in an attempt to reduce acrimony between divorcing spouses.

Clare Thomas | Partner

Head of the Family Law Department

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