New case highlights need for “no fault” divorce law

The case of Tini and Hugh Owens has shown the need for English divorce law to be updated to reflect modern life. The story hit the headlines after Mrs Owens separated from Mr Owens in February 2015 after a long marriage and applied to the court for a divorce. She was told by the Court that, legally, her marriage had not “irretrievably broken down” and she had to remain married. The Court stated “it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage”. This is a sentiment most people would naturally find difficult to understand.

Mr Owens wasn’t willing to accept his behaviour caused the marriage breakdown, therefore the divorce couldn’t  proceed as a paper-based exercise as is usual and the allegations made in Mrs Owens’ divorce petition concerning his unreasonable behaviour had to be fully tested at a trial. This is extremely rare with the judgment estimating that a tiny 0.015% of petitions proceeded to trial in the year ending January 2017.

Unfortunately we do not have a “no-fault” divorce system. We currently rely on a passage of time after separation: two years if the other person is willing to give their consent to the divorce and five years if one party needs to proceed without the other’s consent.

Having taken the difficult decision to end a marriage, it’s natural to want to take immediate steps to formalise the position, so the majority of divorce petitions proceed based on the “unreasonable behaviour” of one of the parties.  Usually one party makes anodyne accusations against the other and they agree these in draft form before the petition is sent to the court. When the responding party is invited by the Court to acknowledge the petition they confirm they don’t intend to defend the divorce (i.e. it can continue) but they don’t agree with statements made about their behaviour. No serious allegations are made, no allegations are accepted and the Court grants the decree. It’s essentially a way around the letter of the law.

The idea that the Court and not the parties decide whether a marriage is at an end feels outdated. Separating following a marriage is hard enough and it doesn’t help to be required by law to make allegations of bad or unreasonable behaviour against a husband or wife. Bearing in mind that there are often issues relating to children and finances to be navigated as well, this adds an additional burden at an already difficult time. It’s time for Parliament to grasp the nettle and create an option for no-fault divorce. In the meantime, approaching a solicitor dedicated to a non-confrontational and co-operative approach can be crucial in beginning the divorce process in the right way.