There is a growing call throughout the legal community for a so-called “no-fault divorce” which would allow a couple to be divorced as soon as they agree that the marriage has broken down, without the need to assert any blame or fault, and avoiding having to wait for at least 2 years to pass following their separation, as the current law requires.
The need for a change in the law has become even greater in recent months following the case of Owens v. Owens, in which the judge decided that being in an extremely unhappy marriage wasn't enough to prove the marriage had broken down beyond repair.
Mrs Owens had asked for a divorce on the basis of her husband's unreasonable behaviour, which had made her extremely unhappy over a prolonged period of time. Mrs Owens claimed that her husband had abandoned her, had worked long hours away from home and had stopped showing her any kind of love and affection for many years. As result, she argued that she could no longer reasonably be expected to remain living with him and that the marriage had irretrievably broken down. Unusually, Mr Owens chose to contest the petition, arguing that the allegations were minor and the kind that should be expected in any normal marriage.
The judge initially considered the allegations Mrs Owens had made and decided that, at best, they were flimsy and dismissed her request for a divorce. Mrs Owens appealed against this decision but the Appeal Court agreed with the first Judge. This has forced Mrs Owens to remain in the marriage, unable to divorce her husband until 2020, unless he consents to a divorce sooner than this.
Fortunately, contested divorces are very rare. A couple might disagree on the reasons why the marriage has failed but it is unusual for them disagree that the marriage has broken down at all. In this case, Mrs Owens was essentially asked to prove that her husband's behaviour made it unreasonable for her to be expected to remain in the marriage. This is of course, incredibly subjective and for many couples, a very personal judgement for someone to make. Mrs Owens was essentially left at the whim of the judge on the day and his interpretation of her private and complex marriage.
Organisations such as Resolution and the Marriage Foundation are now actively calling for change. It’s perhaps unlikely that Mr Owens would have agreed to a divorce, had a “no-fault” option been available, but many feel that the law no longer reflects modern-day reality. However, until then, it is perhaps now more important than ever to seek legal advice before you start a divorce, especially if you think your husband or wife may attempt to contest the proceedings. Approaching your spouse before divorce proceedings start, to try and agree who will divorce who and on what grounds, can be immensely helpful in avoiding any additional upset and can limit the chances of an expensive dispute.
At BPE we are experienced in working with the complex issues which arise on family breakdown. We will give you clear advice on your options and help you focus on the important issues such as agreeing the arrangements for your children and achieving a fair financial settlement.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.