29th Mar 2017

Moving forward when paths have diverged

A recent case has raised fresh calls for the way divorce is handled in the UK, with family law practitioners highlighting the need for a ‘No Fault Divorce’ as a legal option for when couples whose paths have diverged.

The case concerned Tini and Hugh Owens, a couple who separated in 2015, with Mrs Owens subsequently petitioning for a divorce based on her Husband’s unreasonable behaviour. Upon receiving the petition, Mr. Owens stated that he did not agree with the ground for divorce and would therefore defend the petition.

Grounds for divorce

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
  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. When blame is not a key factor, this can create hostility and unnecessary friction at a time when emotions are running high.

Calls for a No Fault Divorce

In November 2016, I and other members of Resolution took part in a National Lobby Day at the Houses of Parliament. Members from across all parts of the UK travelled to London to meet with their local Members of Parliament to campaign for changes in the current law, the primary focus being a “No Fault Divorce” amongst other changes.  The event attracted significant media coverage and many MPs agreed to raise the issue in parliament.

It is hoped that the recent case of Owen v Owen will further emphasis a need for a “No Fault Divorce”.

Owen v Owen

In the Owen case – which saw Mrs. Owen citing unreasonable behaviour as ground for divorce – a number of questions arise. The test for unreasonable behaviour is one that is subjective, as what is tolerable to one person is not necessarily tolerable to the other. Given all the circumstances, the Courts have to decide whether the husband’s behavior was sufficient to say that the Wife could not reasonably be expected to live with the husband.  Unfortunately, at trial, the Judge found that Mrs. Owen’s grounds for divorce were not sufficient and the petition was dismissed, a decision which she appealed.

On appeal, the Judges found that the initial trial judge had correctly applied the law and made clear finding of facts.  The Court of Appeal commented that it was not for the Courts to decide whether there should be a change in the law but whether the law had been correctly applied, which it had been.

While the judges had great sympathy for Mrs. Owen’s predicament and hoped that the Husband would re-consider his position over time, in the interim Mrs. Owen is forced to stay in a loveless marriage unless her husband decides to co-operate.

If the husband does not relent, Mrs. Owen will be forced to wait until they have been separated for two years. At this point she can petition for a divorce on two years’ separation as long as her husband is prepared to consent. If the husband remains uncooperative, Mrs. Owen will have no alternative than to wait five years when consent is no longer required.  Five years is a considerable period of time to wait…

Mrs. Owen now intends to apply for leave to appeal to the Supreme Court whether this will finally prompt a long overdue change in the law around No Fault Divorce remains to be seen.

Danielle Day is a Family Lawyer at Berwins. Along with her colleagues in the firm’s industry ranked Family Team she is a member of Resolution and is committed to promoting a non-confrontational approach in separation and divorce.

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