Posted by Will MacFarlane, Partner
Time for no fault divorce?
The Supreme Court will today hear the case of Owens v Owens which some see as the most important divorce case of the century.
Unlike in countries such as Australia or Ireland, divorcing couples in England and Wales are forced to cite adultery or detailed examples of unreasonable behaviour if they wish to start the divorce process without a lengthy delay. We strive to help parties divorce as amicably as possible yet the fault requirement raises tensions and pits parties against each other before a financial settlement or arrangements for children are even considered.
The Owens case highlights the desperate need for reform of a law that has been in place for nearly 50 years.
After 39 years of marriage, Tini Owens petitioned for divorce citing her husband’s unreasonable behaviour. Rather than accepting that the marriage had broken down and allowing it to proceed, Mr Owens chose to defend arguing that the behaviour cited did not satisfy the required test being “that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent”.
Judge Robin Toulson QC’s first instance refusal to allow the Divorce Petition to proceed, later upheld by the Court of Appeal, highlights not only a need for legislative reform but also the inconsistency between the law and the way it is applied.
For decades, family lawyers and judges have been complicit in a ruse. Petitioners cite anodyne examples of behaviour (for example working long hours, not showing interest in the other party’s life etc) and Respondents allow them to proceed undefended, regardless of whether the behaviour is sufficiently strong to satisfy the required test.
If the law were applied correctly, many would be in the same position as Mrs Owens, having to wait for five years before they are able to divorce without their spouse’s consent.
The Government has shown a reluctance to address legislative reform in Family Law. It has shied away from legislating to make pre-nuptial agreements binding and ignored calls to introduce statutory rights for cohabitants.
In an effort to escape a loveless and unhappy marriage, Mrs Owens will today seek the help of the Supreme Court. Whether it can help her within the current legislative framework remains to be seen.
Regardless of the outcome, family lawyers across the country will re-double their lobbying efforts in the hope that Government will finally reform an outmoded law which is deeply unhelpful to divorcing parties at an already difficult time.
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