A recent case has trigger a Government consultation for the introduction of a no-fault divorce system.
Under the current law in England, in addition to proving irretrievable breakdown of the marriage, divorce must be proved using one of the following 5 grounds:
- Unreasonable behaviour
- Desertion for 2 years
- Lived apart for more than 2 years (where both parties agree to the divorce)
- Lived apart for more than 5 years (even if contested by one party)
The high-profile Trini Owens case saw a Judge in the High Court refuse her a divorce despite her plea of unhappiness in a “loveless marriage”, labelling her examples of her husband’s behaviour as ‘flimsy’ and saying she was unable to prove a ‘persistent course of action’ which proved it was unreasonable for her to live with him. Both the Court of Appeal and the Supreme Court refused to interfere with that decision.
What change could mean for divorcing couples:
No more blame-game
The need for divorce to be justified by one of the 5 grounds (most frequently behaviour if one party wants to get on with sorting things out) necessarily leads to accusations, which unless handled sensitively, can fuel antagonism at a time often already filled with negativity. This is usually the case when petitions are defended and as the Owens case confirmed, allegations can be added and amplified. The reform should therefore reduce and alleviate some of the stress this causes during separation.
Consent – it will not matter!
Currently, couples must be living apart for more than 5 years to divorce with ‘no-fault’ and anything sooner, allows one party to contest the divorce. Reform will end this right. Instead, the party filing for divorce, will be entitled to it after giving a set period of notice (to be decided), despite any disagreement or defence from the responding spouse.
Seeking legal advice
If there has been one clear thing to come out of the Owens case, it is the importance of seeking legal advice during divorce proceedings to try to avoid a defended divorce.
Our Family Law expert, Mike Spencer says, “The Owens case stresses that behaviour petitions are not about what caused the marriage breakdown, but simply whether the behaviour is such that it is not reasonable to continue living with the respondent. Mrs Owens failed to prove this in the judge’s opinion and as is very often the case, the appeal courts refused to interfere with the person who had seen the parties and heard their evidence”.
Although the consultation and promise of reform are welcome and will simplify this part of the process, in the meantime, seeking legal advice remains important so as to produce Petitions which avoid antagonism; ensure reasons for divorce are not defended; but are robust enough to avoid the risk of dismissal in Court if things change.
Posted on September 19, 2018