Divorce law experts are predicting that divorce law reforms will be called for following the unusual case of Owens v Owens.
Mr and Mrs Owens were in the Court of Appeal the week of the 13th February 2017 and their case highlights the rigidness of the antiquated divorce laws.
A family court ruled last year not to grant Mrs Owens a divorce from her husband. He successfully argued that their marriage had not irretrievably broken down, despite his cited unreasonable behaviour and her affair with another man.
Judge Robin Toulson QC said that the allegations Mrs Owen made of her husband were nothing more that minor altercations one would expect in a marriage.
However, in the Court of Appeal, Mrs Owen’s barrister Philip Marshall QC, pointed out that is was ‘extremely unusual’ for a court to dismiss a divorce petition and urged the judges to consider the ‘cumulative effect’ of the unreasonable behaviour.
Nigel Shepherd, the chair of Resolution, says that this case would never have occurred if there was a no-fault divorce system in place, like the one that Resolution has been campaigning for.
Samantha Lee, Head of Family Law at Swain & Co Solicitors, explains, “Currently, to have a divorce granted, it must be demonstrated by providing one of five facts:
- Adultery
- Unreasonable behaviour
- Desertion for a period of two years
- With consent after two years’ separation
- Without consent after five years’ separation
Effectively, fault needs to be identified for a divorce petition to progress. We think this is outdated and causes unnecessary blame and litigation.”
Resolution foresee a single foundation for divorce, that is establishing irretrievable breakdown of a marriage where one or both parties can declare their marriage is broken down and if, after a six month waiting period, either or both hold the same view a divorce will be granted.
Nigel Shepherd expands on the idea of the cooling off period: “If parties have already separated (in the legal meaning of no longer living together as a couple, rather than necessarily physically being together under separate roofs) for six months at the time of filing the initial statement, there would be no need for the additional waiting period.”
Whilst there is support for reforms, in October 2015 the No Fault Divorce Bill did not pass its first Commons reading.
On 15th February 2017, Lord Keen of Elie said that the government has no plans at present to change the existing divorce.
Samantha Lee responds, “Surely, this unusual case would highlight that there need to be more clarity on this. It is not unusual to have unreasonable behaviour cited as a grounds for divorce, and judges grant divorce on many allegations and example of trivial behaviour, provided the petitioner can demonstrate the negative impact it has had on them. This make this case even more unexpected. I hope that the Court of Appeal will overturn the decision made.”
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