For many years there has been a call to introduce ‘no fault’ divorce and to path the way for the future of divorce law. The recent case of Owens v Owens [2017] EWCA Civ 182 has highlighted the existing concern that in order to obtain a divorce straight away, you have to prove that the other party is at fault, either in their unreasonable behaviour, or by committing adultery. It is possible to divorce on the basis of separation, but that necessitates a delay of at least 2 years (and even at that stage, there has to be agreement).
The Owens case went to the Court of Appeal, which decided that Mrs Owens had not proved that her husband had ‘behaved so unreasonably that she could not be expected to live with him’ which is the test she needed to meet to successfully pursue her divorce. Effectively, the Court decided that she had to remain married to the man that she no longer loved and no longer wanted to live with.
Divorce practitioners have to tread the fine line between preparing a divorce petition that goes far enough to satisfy that test, whilst also trying to ensure that the allegations do not heighten the already raised tensions between the parties. The last thing anyone really wants is the costs and acrimony involved in a defended divorce.
Surely, when one party to the marriage has decided that they no longer wish to be married, and when they have had the opportunity to receive marriage counselling, they should be able to take the necessary steps to bring their marriage to an end with as little cost and acrimony as is possible in the circumstances?
The House of Commons Library released its briefing paper dealing with ‘no-fault divorce on 17 October http://researchbriefings.parliament.uk/ResearchBriefing/Summary/
which is helpful but is likely to be looked at by Parliament only in the context of wider family law reform.
Written by: Thea Hughes
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Published: 20/11/17