No Fault Divorce –
The Future of Divorce Law?
Our divorce law is now over 50 years old. Couples seeking a divorce in England and
Wales must either spend a minimum of two years separated or one must blame the
other for the marriage breakdown, citing adultery or unreasonable behaviour.
Even if both partners mutually agree the relationship is over, they still must
apportion blame if they wish to waive the two year waiting period.
In 2015 60% of divorces in England and Wales were granted on
adultery or unreasonable behaviour. By contrast in Scotland where divorce is
different, this percentage was only 6%.
Divorce and separation is often a time of conflict and
distress. There are a lot of potential crises and issues to resolve for couples
even where they have mutually agreed that their marriage is over, and many
working in Family Law believe that the present divorce law can create further
conflict, and can make reaching agreement about arrangements for the children
and financial matters more difficult.
The Law Society’s Family Law Protocol encourages Solicitors
drafting divorce petitions based on unreasonable behaviour to include brief
particulars that are sufficient to satisfy the Court. When drafting the particulars, the Family
Procedure Rules 2010 provide that they must evidence the Applicant is entitled
to a divorce but should be as concise as possible. As part of the Protocol,
Solicitors are also asked to provide the other party with a draft copy of the
petition wherever possible, with a view to agreeing the allegations of
behaviour and minimising any conflict between the parties. Even where that does occur, there can still
be a feeling of unfairness by one party.
On the 17th March 2018 the Supreme Court heard an
appeal by a Mrs Owens against the refusal of a Judge to grant her a divorce on
the basis of the unreasonable behaviour of her husband. The couple had been married for nearly 40
years and it was Mrs Owens’ position that she had been left feeling ‘unloved,
isolated and alone’. She stated that she
had moved into rented accommodation in early 2015 and that she and Mr Owens had
been living separate and apart since then and had lived separate lives under
the same roof for many years previously. The Judge dealing with the case ruled
against Mrs Owens, concluding that her allegations were ‘of the kind to be
expected in marriage’. The Court of Appeal dismissed her appeal, acknowledging
that their ruling left her ‘trapped in a loveless marriage’. Explaining the
ruling, Sir James Munby, President of the Family Division, hearing the appeal,
said ‘ It is not a ground for divorce if you find yourself in a wretchedly
unhappy marriage – people may say it should be’.
The above case has led to concerns about the drafting of Divorce
Petitions based on unreasonable behaviour, and the need to ensure that the
particulars are sufficient to satisfy a Court.
Resolution, the organisation who represent many Solicitors
practising in Family Law in England and Wales have proposed a new divorce
procedure where one or both partners can give notice that their marriage has
broken down irretrievably. The divorce could then proceed and after a period of
six months, if either or both parties still thought they were making the right
decision, the divorce would be finalised.
The decision of the Supreme Court in the Owens case is awaited,
and whether the publicity surrounding the case leads to Parliament amending the
law remains to be seen.
For advice about family law matters, please contact Steven
Barratt or Heather Weavill at Alison Fielden & Co on 01285 653261,
www.alisonfielden.co.uk
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