End of ‘the blame game’ – no-fault divorce poised to take family law into a modern era

WE predicted back in September that 2019 would witness the biggest overhaul of divorce laws in history.

And this week our forecast was proved right

The planned new reforms follow what family law experts dubbed “the most significant divorce case in history”

The aftermath of the recent case of Owen and Owen has triggered widespread – and healthy – legal debate. Its implications may have far-reaching consequences for family law and future divorce cases across England and Wales.

In particular, the ruling on Owen and Owen may finally spell the end of the so-called “blame game” between partners at the end of their relationship.

Instead, it could pave the way for the option of a no-fault divorce in England and Wales to become law.

In doing so, it would see both nations breaking new ground and following in the footsteps of the United States, Australia and Scotland in modernising family law in this way.

The legal crux of the Owen and Owen case was weather a woman, who wanted to divorce her husband because she was unhappy and viewed her marriage as being over, was able to do so.

Tini Owens, 68, from Worcestershire, asked the court to grant her a divorce from her husband of 40 years Hugh, who was steadfastly refusing the split.

But the Supreme Court unanimously rejected her appeal, meaning she must remain married until 2020 whereby she can rely upon 5 years separation as the reason for her application for divorce.

This ruling was eagerly-awaited as the case was viewed as a potential catalyst for changing legislation increasingly seen as out-of-touch and archaic.

Now, it effectively lights the blue touchpaper in the radical overhaul of our divorce laws that have not been updated since they were introduced in 1973.

Then, the country was in the grip of power cuts and the Three Day Week; James Bond and Live and Let Die was licensed to thrill the cinema box office; and the country was entering – not leaving – the European Union after a public referendum.

Fast-forward 45 years, and the Owen and Owen ruling now thrusts the spotlight firmly on whether or not our divorce laws have moved with the times since that bygone era.

And, crucially, whether they are still fit for purpose in today’s very different society.

The initial reaction to the ruling from the Ministry of Justice suggests not.

In a very telling response, it said: “The current system of divorce creates unnecessary antagonism in an already difficult situation. We are already looking closely at possible reforms to the system.”

So why does the law need reforming? Under the current legislation in England and Wales, people have to prove their marriage has irretrievably broken down by evidence of one of the following limited reasons:

– adultery

– unreasonable behaviour

– desertion

– two years’ separation with consent

If it cannot be proved in one of these ways, the only route for obtaining a divorce without a spouse’s consent is to live apart for five years – the scenario now facing Mrs Owen.

She had tried – and failed – to rely on most commonly-relied upon reason for divorce – unreasonable behaviour.

Together with adultery, this has been cited by more than 1.7 million people in their divorce applications since 1996, according to the Law Gazette.

With adultery, the respondent would have to admit to this, which can sometimes cause issues as many do not want to confess having an adulterous relationship for a raft of reasons, including their concern they could be viewed less favourably.

People therefore tend to fall back on “unreasonable behaviour” as evidence for seeking a divorce.

The law states that the respondent must have “behaved in such away that the petitioner cannot reasonably be expected to live with the respondent.”

Both adultery and unreasonable behaviour are fault-based – and which need to be proven. And this is where Mrs Owen fell short.

The fact they need to be proved can also cause tensions to rise between both parties – especially when reasons are put down in writing.

Law Society guidance seeks to ensure that this is drafted in a moderate manner – yet in a way that goes far enough to enable a court to judge whether the behaviour was such that it would be unreasonable for a petitioner to live with their partner.

As a result, most applications for divorce are not defended by a respondent as it is accepted that a marriage is at an end.

Where the Owen and Owen case differed is that the husband robustly contested the case. The courts applied the law, and declared that the wife could not rely on his unreasonable behaviour as grounds for a divorce.

Having lost her appeal against this ruling at the highest court in the land, Mrs Owen must now wait for five years’ separation before divorce is formally granted, unless Mr Owen will consent to a divorce after two years separation.

The irony of that timescale is that the case has renewed calls for our divorce laws to be reformed as a matter of urgency, ensuring they are fit for purpose in today’s modern world.

It could just be that we see the very first no-fault divorce being granted well before Mrs Owen’s own long-drawn-out, five-year wait for divorce is finally over.

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