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Beviss and Beckingsale
Zoe Gaitskell

Time for no fault divorce?

Posted by Zoe Gaitskell on August 7th 2018 in All , FAMILY .

Divorce has recently made the headlines when the Supreme Court ruled that Mrs Owens was not entitled to divorce her husband on the basis of his unreasonable behaviour.  In England and Wales, there is only one ground for divorce, namely that the marriage has broken down irretrievably.  This is proved on the basis of one of 5 facts; adultery, unreasonable behaviour, 2 years’ separation with the consent of both parties, 5 years’ separation or desertion. 

In this case, the parties had been married for 40 years and had 2 adult children.  Mrs Owens left the marital home in 2012 but did not commence divorce proceedings until 2015, citing her husband’s unreasonable behaviour.  The vast majority of divorces proceed undefended but, unusually, Mr Owens defended the petition.  The judge at the first instance accepted that the marriage had broken down irretrievably but dismissed the petition finding that the examples of Mr Owen’s behaviour were flimsy and exaggerated and amounted to ‘minor altercations of a kind to be expected in a marriage’.

Mrs Owens appealed to the Court of Appeal, who upheld the original decision.  Mrs Owens then appealed to the Supreme Court who unanimously dismissed the petition, albeit reluctantly, stating that they could only interpret the current law and suggesting that parliament may wish to consider changing the law.  Many are now calling for reform, so that the Courts move towards ‘no fault’ divorces, similar to the US where you can divorce on the basis of irreconcilable differences.  This would make the process quicker, simpler and more amicable.  The current system seems antiquated and can inflame matters by pointing the finger of blame at one party.  Opponents to reform say that ‘no fault’ divorces would make it too easy to divorce and would trivialise the institution of marriage.  We will have to wait and see whether Parliament decides reform the current law.

As for Mrs Owens, she will now have to wait until February 2020 when she will be able to divorce her husband on the basis that they have been separated for 5 years when she will not require her husband’s cooperation or consent.