Divorce - Whose fault is it?

Clients are regularly surprised to learn that divorce proceedings have to be based on allegations against their spouse and that divorce is not on a no-fault basis. On 25 July, the Supreme Court delivered its Judgement in the case of Owens v. Owens (2018) UKSC41 in which Mrs Tini Owens had petitioned for divorce relying upon the fact of her husband’s behaviour. The petition was successfully defended by Mr Hugh Owens at a trial, later in the Court of Appeal and finally in the Supreme Court when, to put it briefly, the allegations she had made were deemed not to be unreasonable enough. It was clear that this was an unhappy marriage, but one which currently Mrs Owens is still unable to escape. If divorce proceedings were designed to end the “empty shell of marriage” it proved, sadly for Mrs Owens, to have fallen on deaf ears.

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.

• That the Respondent has committed adultery.
• That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
• That the Respondent has deserted the Petitioner for a continuous period of at least two years.
• That the parties have lived apart for a continuous period of at least two years and the Respondent consents to a decree being granted.
• The parties have lived apart for a continuous period of at least 5 years.
• A Petitioner is required to seek a divorce which fits in with one of these five facts.

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.