The process of getting divorced is not always as straightforward as it may appear. At present there is only one ground for divorce which is irretrievable breakdown. This can be proven by a Petitioner relying upon one of five facts as set out in the governing statute, the Matrimonial Causes Act, 1973.
This decision on Owens v. Owens has attracted much comment and criticism and has reignited the campaign lead by Resolution (who had been granted permission to intervene in the appeal) and others to seek a change in the law and switch to a no-fault divorce regime. One sound reason for such a change is that it would make it easier to reduce conflict between the parties. There has been a tendency in recent times to draft petitions which contain allegations of behaviour that were relatively low-key. However, faced with a similar outcome to that which has befallen Mrs Owens, practitioners may include more serious allegations which were once deemed appropriate to omit - especially in matters where there is a risk of the parties being defended. Additionally, it can become more difficult for separated parents to reach an amicable agreement over arrangements for their children.
It was welcome news to many parties when it was reported on 07 September that Justice Secretary, David Gauk, is to announce a consultation on no-fault divorce. Depending upon the outcome of this, the present fault-based system to establish marital breakdown may potentially be abolished. In fact, this nearly happened over 20 years ago when, following a Law Commission report, the Family Law Act 1996 made provision for a no-fault divorce, but the relevant section was never implemented.
So what could replace the current fact-based divorce process? The Ministry of Justice is yet to elaborate. It is possible that the concept of irretrievable breakdown may be retained, but the existing 5 facts will be swept away. This could be replaced by a single no-fault fact such as a short notice period. It is also likely that defending petitions will be abolished. The proposed legislation is also expected to apply to civil partnerships.
In the meantime, Mrs Owens must wait until she has been separated from her husband for a continuous period of 5 years before she can petition again to end her unhappy marriage. It remains to be seen whether divorce law will change substantively before she is able to do so.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.