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The case of Owens and Owens, recently heard in the Court of Appeal has ignited the debate surrounding the notion of so-called ‘no fault’ divorce.

In this case, Tini Owens sought to overturn an earlier Court decision ruling that her application to divorce her husband, Hugh Owens should not be granted. Mrs Owens alleged in her divorce petition that the marriage had irretrievably broken down due to his unreasonable behaviour, examples included a failure by him to provide her with love and affection, frequent arguments caused by his mood swings and disparaging remarks made about her in front of friends and family. Mr Owens disagreed with this and claimed that the marriage had not broken down.

In hearing Mrs Owens’ application for a divorce, the Court held that the allegations made were of the “minor kind of altercations to be expected within a marriage”. Reluctantly, the Court of Appeal refused Mrs Owens’ appeal on the basis that the Judge had applied the law correctly. The decision acknowledged that this would leave her trapped in a very unhappy situation, but expressed that it was for the Government, and not the Court, to change the law. The President of the Family Division, Sir James Munby, denounced the current law as “based on hypocrisy and lack of intellectual honesty”.

Since this decision was reported, several judicial figures have spoken out in support of reform to what are being heralded “outdated” divorce laws. Such criticisms have been made before, yet we seem to be no closer to change.

The current system requires a person seeking a divorce to establish that the marriage has irretrievably broken down by claiming one of five facts. Three of those facts require a period of separation of at least two years, and given that many separating couples may not want to wait that long, the only option available is to claim that the other has either committed adultery (which may not be applicable in many cases and is likely to be contested by the other party) or behaved so badly that the petitioner cannot be expected to live with them. It is this need to apportion blame that Lord Mackay, who has served under two prime ministers as Lord Chancellor, considers to have a "corrosive effect on relationships" and to be “very damaging to children”.

In our experience, very few divorcing couples would find themselves in the same position as Mrs Owen as it is rare that a divorce is opposed. However, to prevent this situation occurring, a careful balancing act must be performed: one must provide examples that are not so trivial as to be rejected by the Court (which is now a risk made arguably more likely by this case) and yet not so contentious as to lead to the spouse opposing the grounds for divorce. Couples therefore often find themselves in the unhappy situation where they are forced to blame the other in order to obtain a divorce, and can lead to, in Sir James Munby’s words, "collusion", in that the couple agree to examples of unreasonable behaviour merely to get the divorce approved by the Court.

In a recent report by the Nuffield Foundation, it was recommended that fault be removed entirely from divorce law, to prevent falsified and exaggerated allegations, and to replace the current system with a notification system.

In October 2017, the report of a Nuffield Foundation funded research project, led by Professor Liz Trinder of Exeter University, recommended removing fault entirely from divorce law and replacing it with a notification system. The report concluded that it was time for the law to be reformed to address the mismatch between law and practice.

The Government has indicated in response that any proposals for legislative change to remove fault from divorce would have to be considered as part of its more general consideration of possible reform of the family justice system. The Government has also said that it would study the evidence for divorce law reform but would not rush to a conclusion.

The balancing act will therefore continue until such a day as the Government decide to reform this area of law. This is a difficult area to navigate, and one which involves high emotions without these added considerations. If you are considering a divorce, please do not hesitate to contact us to arrange a free 20-minute consultation to discuss your options. 

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