26th Jul 2018

Assessing the case for 'no fault divorce'

In a blow to those of us who wish to deal with issues on divorce and separation in a non-confrontational manner, the Supreme Court has ruled that a wife who believes her marriage is “loveless and has broken down” will not be able to seek a divorce on the grounds of unreasonable behaviour.

The decision is the latest in a series of rulings which started when Tini Owens separated from her husband Hugh in 2015 and petitioned for divorce based on his behaviour, allegations which Mr Owens rejected. The case has hinged on this question, with the court being left to rule on whether his behaviour was indeed unreasonable. Up to now it has been understood that a subjective view could be taken and that it was in the eye of the beholder. As a result couples have been able to divorce on the basis of mild allegations that offend no one and make it easier to deal with the financial and other issues that arise.

Why must Mrs Owens wait?

Under UK law there is only one ground for divorce, being that the marriage has “irretrievably broken down”. The ground is supported by one of five factors (three of which are “fault based”). These are:

  1. Unreasonable behaviour
  2. Desertion for two years
  3. Adultery
  4. Two years’ separation with consent
  5. Five years’ separation without consent

To obtain a divorce immediately, rather than waiting for a period of time, the current position means that one spouse must blame the other for the breakdown of the marriage. As Mrs Owens has been unable to gain a court ruling that she has been subjected to unreasonable behaviour and her husband remains unwilling to consent to a divorce, she must now wait until the pair have been separated for five years – 2020 – before she can formalise divorce proceedings.

Calls for a 'No Fault Divorce'

Resolution, the body of family lawyers committed to dealing with cases in a sensible and constructive way has been campaigning for a no-fault divorce for several years. This case will only increase the strength of their arguments and even the law lords giving judgment in the Owens case seem to have some sympathy. Lord Wilson said that the court had ruled against Mrs Owens “with reluctance”, saying the “question for Parliament” was whether the law governing “entitlement to divorce” remained “satisfactory”. In my view it certainly doesn’t! 

Having to draft divorce papers that firmly put the blame on one party and must now include some more serious allegations isn’t going to help keep things calm and conducive to settlement. The current laws date back to 1973 and now surely is the time for a review and legislation that is more in line with current thinking.

Stephen Root is a top Yorkshire family lawyer with over 30 years’ experience in supported separating couples. To discuss how with Stephen and Berwins' expert Family Law team can support you, call 01423 543 108 or use our online contact form.

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