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Divorce law - is fit for the current age, or is it time for a change?

04th Oct 2018

Following the recent decision in the UK Supreme Court in the case of Owens v Owens [2018],

Following the recent decision in the UK Supreme Court in the case of Owens v Owens [2018], Brown Turner Ross Managing Director and Head of Family Law, Samantha Bushell, considers whether divorce law is fit for the current age, or is it time for a change.

In the Owens case, the wife, Tini Owens, made an accusation of unreasonable behavior against her husband as the ground for divorce but the accusation was not accepted by the court. She then argued that she should be entitled to a divorce on the grounds that the marriage was “loveless” and “broken down”. The Supreme Court rejected the argument that a divorce can be granted on these grounds and refused to grant Mrs Owens a divorce. Furthermore, because her husband did not consent to a divorce Mrs Owens must now remain married to her husband until the expiration of 5 years’ separation and will then have to again petition for divorce.

I have specialised in divorce cases for my whole career and my cases are often accompanied by financial relief applications for the division of significant marital assets. It has always been the case (and until recently unchallenged) that for divorce proceedings to begin there must be a “fault” attributable to one or both of the parties to the marriage, or a significant period of separation.

For a divorce to be granted based on “no-fault” there must be the consent of both parties and a period of separation of 2 years or where both parties do not consent a period of separation of 5 years. Most people simply do not want to wait that long and so it in order to speed up the process they must seek to attribute “fault” to their spouse. This can make what is already an emotional and stressful time even more so.

Adultery is a “fault” for the purposes of a divorce application, as is “desertion”, and where those circumstances arise and are accepted by the court the wronged party will have no difficulty in petitioning for divorce. But what if your spouse has not cheated or left the family home and your relationship has simply broken down and you no longer want to be married. Can you get divorced without waiting 2 or even 5 years? The answer is currently “no” unless you can evidence your spouse’s unreasonable behavior.

It is accurate to say that the party wanting to initiate the divorce does not always want to apportion blame, they just want to end the marriage, but then on receiving advice they realise that they have to do this unless they want to wait for a significant period of time. So begins an exercise in examining the spouse’s behavior so that it can be presented to the court as unreasonable, which can be upsetting for both parties to the marriage.

What follows is a divorce petition being served on the other spouse setting out their “unreasonable behavior”. Unsurprisingly this leads to upset and offence and the accused party wanting to defend themselves and their good name. What starts out as simply a broken relationship turns into a fractious and heated (and often expensive) rift. Where some sort of relationship may have been salvageable, particularly important where children are involved, the allegation of unreasonable behaviour will often cause irreparable damage.

In the modern age this should not be the case and people should be allowed to elect to divorce their spouses because that is what they want to do. The decision that one party has made to get divorced should be enough to satisfy the other party and the court that a divorce should be granted.

I accept that marriage is deeply-rooted in tradition and religion and that people should take marriage and the consequences of marriage seriously. There is an argument that “divorce for convenience” will dilute the sanctity of marriage but with a divorce rate in the UK of approximately 50% I think it is time to accept that the modern perception of marriage is already diluted from what it once was.

Following the Owens v Owens case the Lord Chancellor, David Gauke, is to begin a consultation on introducing “no-fault” divorces. The route to divorce should not include mandatory confrontation. Mr Gauke has stated that the current system creates “unnecessary antagonism” and that there is a “strong” case for reform. The proposed reform would effectively allow “divorce for convenience” and would avoid the necessity to attribute “fault”.

I agree that in the modern age this is necessary reform and I welcome it. An unhappy spouse should be able to divorce simply because they are unhappy and there should not be a legal requirement to make things more difficult and fractious before a divorce is granted.