Time For a No-Fault Divorce?

In the recent case of Owens -v- Owens [2017] EWCA Civ 182, the Court of Appeal dismissed the wife’s appeal against the dismissal of her Divorce Petition, leaving her (as the Court of Appeal acknowledge) "trapped in [a] loveless marriage".

In this case, the husband indicated his intention to defend the divorce, following the wife’s filing of her petition on the fact that the husband had behaved in such a way that she cannot reasonably be expected to live with him.  Despite pleading 27 allegations in support of her petition, the court dismissed it. The Judges’ hands are tied by the current Divorce law. The wife intends to seek permission to appeal to the Supreme Court.

In presenting a Divorce Petition to the court in England and Wales, one of five facts which can be relied on is that of unreasonable behaviour. This is a fault based fact and means that the divorce can be commenced straightaway (as long as the parties have been married for at least one year), rather than having to wait until the parties have been separated for two years or more. The majority of divorces are based on fault in this country.

The task for the court, in assuming the allegations are true, is does what is pleaded amount to unreasonable behaviour?  Lawyers therefore have the challenging role of ensuring the unreasonable behaviour particulars are not so neutral as to be rejected by the court, balanced against the particulars not being too strong/offensive to risk the respondent defending the petition and refusing to co-operate in the Divorce Proceedings.

Sir James Munby, the President of the Family Division of the High Court of England and Wales, has reviewed the number of defended divorce petitions. The President has said that in the year to January 2017, there were 113,996 petitions for divorce and some 2.2% of all petitions over this period included notice of intention to defend by a respondent. The President has assumed that the actual number of petitions which proceed to a final contested hearing in defended Divorce Proceedings is probably little more than a handful. With so few petitions being defended, this begs the question whether the current divorce law is still needed or whether it is now time for reform.

Resolution (an organisation committed to a non-confrontational approach to family law issues) has stressed the urgent need for no-fault divorce in light of the Owens judgement. Resolution consider the decision as to whether or not a marriage should be dissolved, should be one for the parties, not for the state and that only by implementing a no-fault divorce system can we ensure such a situation does not happen again.