Is it Time for No-Fault Divorce?

With the media reporting the case of Worcestershire woman, Tini Owens, who has been refused a divorce after the break down of her 39-year marriage; Associate Solicitor Rachel Bloxwich considers whether now is the time for a change in the law.

Hollywood has a lot to answer for — I’ve been asked many times over the years whether a client can get divorced on the basis of irreconcilable differences: “you know, like they do in the films”. Unfortunately, the fact that you may have grown apart from your husband, wife or civil partner and feel that the marriage has come to an end is not enough to obtain a divorce in England and Wales.

What is the current law?

There is only one ground for divorce – that the marriage has irretrievably broken down. To prove this, however, you have to provide one of five possible reasons to the Court. These reasons are:

• That the other person has committed adultery and you can no longer live with them as a result;
• That the other person has behaved unreasonably and you can no longer live with them as a result;
• That you have been deserted by the other person (which is a notoriously difficult reason to prove);
• That you have lived separate and apart for a continuous period of 2 years prior to starting your divorce and that the other person agrees to the divorce going ahead; and
• That you have lived separate and apart for a continuous period of 5 years.

In the Tini Owens case, the reason used in her petition was that her husband had behaved unreasonably and she could no longer be expected to live with him. When petitioning for divorce using this reason, you are required to provide a few examples of how that person has behaved unreasonably. I understand that Tini Owens’ examples included her husband being critical of her, making ‘stinging remarks’ towards her during a meal with friends, and making her pick up cardboard from the garden.

Why can’t the divorce proceed?

Whilst the reasons given in Tini Owens’ petition are, in my view, very similar to the reasons given in thousands of divorce petitions issued in Courts throughout England and Wales, her petition has been refused.

So, what is different here?

When a divorce petition is issued, a copy is sent to the other party along with a form called the Acknowledgement of Service. There is an all-important question on that form asking: “Do you intend to defend the case?”

In the vast majority of divorces, the spouse who has received the petition usually replies: “no”, or words to the effect that whilst they do not accept what has been said about them in the petition, they will agree to the divorce going ahead. In Tini Owens case, her husband instead answered “Yes” to this question, stating that they: “still have a few years of old age together”.  Then, the allegations put in her petition then formed part of contested divorce proceedings, which a Judge decided did not amount to unreasonable behaviour and were instead: “minor altercations of a kind to be expected in marriage.”

What are the implications of this case?

The outcome of the appeal to the Court of Appeal is awaited and so this may yet be overturned.

It remains to be seen whether this will have a wider impact upon the thousands of divorce cases issued in England and Wales each year. Bearing in mind that the majority of divorces are not defended, it may well be that divorce petitions with similar allegations of behaviour will continue to proceed through the courts unhindered.

Even if a divorce is undefended, however, it is ultimately the Judge’s decision as to whether the criteria are met and the divorce can go ahead. 

Perhaps a more immediate implication is that this case has highlighted once again whether it is time for a change in the law. Our divorce law is based on legislation drafted in 1973 and there have been regular calls over the years to introduce no fault divorce. Indeed, the Family Law Act 1996 did legislate for this, but this legislation never came into force and has now been repealed.

The family law landscape has changed significantly since 1973. Most family lawyers encourage their clients to take a less adversarial and more amicable approach, especially where children are involved. This includes trying to agree the contents of a divorce petition before it is sent to the Court as well as keeping the allegations of behaviour to a minimum and to the least controversial. The Judge’s decision in Tini Owens’ case could result in undermining this approach if Judges become more stringent in taking a view as to what constitutes unreasonable behaviour.

The family lawyers’ organisation, Resolution has recently undertaken a campaign entitled ‘#A Better Way’, which aims to encourage family practitioners to come out in support of no fault divorce to avoid situations such as that which affects Mrs Owens.

Whether the government has the appetite to undertake a large-scale reform of the family justice system remains to be seen as does the outcome of Mrs Owens’ appeal.

How can we help?

If you are considering issuing divorce proceedings it is more crucial than ever that you get expert advice from the outset. Discussing the basis upon which you will issue your divorce petition and making initial contact with your spouse or spouse’s solicitor to try to set matters on an amicable footing from the outset can often make all the difference. Our experienced family team can provide practical advice so that you know where you stand. We offer an initial 30-minute free consultation and open on Saturday mornings on the last Saturday of every month as we understand that getting advice on these issues can often be difficult during the working week.

For more information, contact Veronica Beard on 01905 900919 or at Veronica@bradleyhayneslaw.co.uk

For more information on the case, please see: http://www.bbc.co.uk/news/uk-38978661 

Did you hear us on the radio? Rachel recently spoke to Free Radio Hereford and Worcestershire about this case. Watch this space for the sound clip which will be uploaded shortly 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at 16 February 2017. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.