A few months ago, we published an article about the case of Owens v Owens, where a woman was not permitted to divorce her husband because his behaviour cited in her divorce petition was not found to be sufficient to meet the test for behaviour such as would cause a marriage to break down irretrievably.
The outcome of this case caused a great deal of controversy, with many arguing that it served to underline the outdated approach to divorce law in England and Wales.
What does divorce law say at the moment?
In order to be granted a divorce in England and Wales, one party must show that the marriage has irretrievably broken down by proving one of five facts:
Behaviour (often described in the press as ‘unreasonable behaviour’)
2 years’ separation (with consent from the other party)
5 years’ separation (no consent required)
This means that in order to divorce, one spouse must blame the other because of either their behaviour, desertion or adultery or, alternatively, wait for at least 2 years to pass if their partner agrees, or 5 years if they do not.
‘No-fault’ divorce consultation paper launched following Owens v Owens
Following the Supreme Court’s ruling that Tini Owens could not divorce her husband on the basis of his behaviour as set out in her divorce petition, meaning she would have to wait for a period of 5 years from the date of their separation to elapse, the government launched a consultation process to examine the possibility of moving towards a ‘no-fault’ divorce system in England and Wales.
Earlier this month, the Justice Secretary confirmed that he planned to introduce legislation which would remove the need to blame the other spouse for the breakdown of the relationship.
‘No-fault’ divorce: the future of divorce law in England and Wales?
While the case of Tini Owens is relatively rare because most divorces are not contested by the other party (Mr Owens was reported to have said they still had a “few years” left to enjoy), this case serves to highlight the perceived problems with the system that is in place at the moment.
Not only could people potentially be stuck in marriages they don’t want to be in for over five years (which seems very outdated in the 21st century), the need to attribute blame can add to the animosity during what is often a very difficult time at the end of a relationship. There is a huge drive within the Family Court system for co-operation – parties can’t start proceedings relating to children without either mediation or a strict exemption from mediation, finance proceedings are strongly focused on reaching agreement – so it seems somewhat anachronistic that divorce remains so strongly adversarial.
A ‘no-fault’ system, where a spouse would not need to either place blame on their other spouse nor wait a number of years before they could divorce, could help couples to part on better terms and avoid the bitter taste that comes with officially having to blame, or to be blamed, for the breakdown of a marriage.
Are you considering getting divorced but not sure which basis is right for your circumstances? Or are you worried your spouse may contest your divorce? Get in touch to speak to one of our experienced family lawyers.