Following the landmark divorce case of Owens v Owens heard in the Supreme Court last week, lobbying by Resolution, the national organisation of family lawyers for the introduction of a ‘no fault divorce’ (#abetterway) has gained further momentum.
The ‘no fault divorce’ procedure proposed by Resolution would enable one or both spouses to give notice that the marriage has broken down irretrievably. Divorce proceedings can then proceed, and if after a period of 6 months, either or both parties still consider divorce to be the right decision, the divorce is finalised.
At present, there is only one ground for divorce in England and Wales - the irretrievable breakdown of the marriage. In order to demonstrate that the marriage has broken down, the petitioner must be able to prove one of five reasons. The fact relied upon by Mrs Owens was that her husband had behaved in such a way that she could not reasonably be expected to live with him. Mr Owens took the very rare and unusual decision to defend the divorce.
Mrs Owens cited 27 allegations detailing her husband’s ‘unreasonable’ behaviour, however, these were dismissed by the first judge as ‘minor altercations of a kind to be expected in a marriage’ and Mrs Owens had therefore failed to prove that her husband’s behaviour was unreasonable.
Mrs Owens challenged this decision, but the Court of Appeal agreed with the first judge. This was despite recognising that Mrs Owens would remain in a desperately unhappy situation “as parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage.”
Unless Mr Owens consents to the divorce sooner, the only legal route available to Mrs Owens will be for her to wait until they’ve been separated for five years by which time she will be 70. Mrs Owens has now invited the Supreme Court to consider the case and the Court’s decision is awaited.
Is statute at odds with modern day practice?
There is concern that the widely publicised outcome so far in Owens v Owens will cause divorcing couples to make exaggerated claims regarding behaviour in order to satisfy a judge that the marriage has broken down. This is at odds with the Resolution Code of Practice which encourages family lawyers to draft the divorce petition using non-inflammatory language to avoid further acrimony. The Government has heavily promoted the use of mediation in divorce proceedings to encourage couples to find constructive solutions with regard to children and finances, rather than pointing the finger of blame at each other for the breakdown of the marriage.
What does this mean for couples planning to divorce?
Regardless of the eagerly awaited Supreme Court judgment in this case, it remains for parliament to consider whether present legislation should be amended to bring about a no-fault divorce option. For now, anyone considering a divorce should seek specialist advice. BPE’s family team is experienced at helping steer clients through the difficulties of divorce. Please contact any member of the team to find out how we can help.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.