Last week in the much reported and discussed case of Owens v Owens, the Court of Appeal upheld the original ruling of Judge Robin Tolson who refused to grant Mrs Owens a divorce based on her husband’s behaviour. The appeal Judges concluded that the marriage had not “in law” irretrievably broken down.
As the law currently stands, a couple must have been married for more than a year before they can divorce. There is only one ground for divorce in England and Wales and that is that a marriage has irretrievably broken down. There are five facts that can be used to show a Court that this has happened, they are;
- A spouse has committed adultery with a member of the opposite sex and the other finds it intolerable to go on living together.
- A spouse has behaved in such a way that it would be unreasonable to expect the couple to go on living together.
- A spouse has deserted the other for a continuous period of two years or more.
- The couple have been living separately for two years or more and agree to the divorce.
- A couple have been living separately for five years or more whether or not they agree to divorce.
Separating couples are sometimes in a position where they do not feel that either of them has behaved unreasonably and adultery is not relevant. Under the current legislation a couple in this situation has to wait two years from the date of their separation to divorce. If they wish to be divorced within two years they are in a very difficult position where they effectively have to agree between them that one of them will take the blame to enable them to get divorced more quickly.
It is possible for family lawyers to assist the petitioner with drafting allegations of behaviour within a petition as gently as possible, but, as has been shown in the Owens’ case, the petition does need to be strong enough for the divorce to go through.
It has been reported that Mr and Mrs Owens have now been living separately for in excess of five years and so Mrs Owens will be able to conclude the divorce proceedings but the case has again highlighted, in my view, the need for reform.
The No Fault Divorce Bill is proceeding, albeit slowly, through the parliamentary process. The Bill is “to make provision for the dissolution of a marriage, or a civil partnership when each party has separately made a declaration that the marriage or civil partnership has irretrievably broken down without a requirement by either party to satisfy the Court of any other facts; and for connected purposes”.
The idea is to take away the need for one party to be blamed for the breakdown of the relationship. The proposed procedure may not have helped Mr and Mrs Owens as it will require a level of cooperation but it would have given the couple another avenue to explore. The Bill proposes that a period of time be required, possibly a year, for consideration of how a separation will work in practise including how the finances will be divided to give individuals more time to reflect on whether divorce is really what they want for themselves and indeed any children of the family.
After the specified period of time has passed then a divorce could be brought about as a procedural exercise in connection with any Orders in relation to finances.
The idea of a “no fault” divorce is not a new one and attracts criticism that it would make divorce easier. However “no fault” divorce may be seen as supporting a dignified end to a marriage and the most positive ongoing relationship between the parties.