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Is it time for reform of divorce law?

26 Apr 2017

In the recently reported case of Owens v Owens, the Court of Appeal upheld the decision of a Judge who made the original decision that Mrs Owens was not able to divorce Mr Owens. The allegations that she had made about Mr Owens’ behaviour were flimsy and fell short of what was necessary for the Court to grant a divorce.

Current divorce laws are almost 50 years old, dating back to 1969, and the person applying for a divorce has to prove to the Court that their marriage has irretrievably broken down because of one or more of the following reasons:

  • The other party has committed adultery and the Applicant finds it intolerable to live with them;
  • The other party has behaved in such a way that the Applicant cannot reasonably be expected to live with the other party;
  • The other party has deserted the Applicant for a continuous period of at least 2 years immediately preceding the Application;
  • That the couple have lived apart for a continuous period of at least 2 years immediately preceding the Application and the responding party consents to the divorce; or
  • The couple have lived apart for a continuous period of at least 5 years immediately preceding the Application (where the responding party does not need to consent to the divorce).

Therefore, a couple cannot divorce until they have been separated for at least 2 years unless one party accuses the other of adultery or unreasonable behaviour. It is also not possible to apply for a divorce because you have grown apart until you have lived separately for at least 2 years.

It is unsatisfactory that a spouse has to blame the other party in order to get a divorce within 2 years. It increases acrimony and often sours the relationship so it becomes difficult to make joint decisions regarding child arrangements and/or reach an agreement in relation to finances. However, the alternative is to live in limbo for a 2 year period, which is also unsatisfactory because a couple is unable to have the certainty of a legally binding financial agreement and deal with the transfer of pension funds from one party to the other at the time of separation.

Resolution, the family law organisation committed to the constructive resolution of family disputes by promoting a non-confrontational approach to family problems, have been campaigning for a change in the divorce law to a “no fault” system for many, many years and recently held a Lobby Day in Parliament in order to meet with MPs to try to persuade them to apply pressure for a change in the law.

There is, however, a way to minimise the fallout of a divorce based on blaming one party for adultery or unreasonable behaviour. Using the collaborative process, the parties and their lawyers work together to reach agreements that are fair to all. Often discussions take place to agree on the wording of the allegations of blame so that the reasons for the divorce are effectively agreed between the parties in advance of the papers being sent to the Court. In situations such as this, the person who is blamed has had an input into the allegations that are made against them and, on some occasions, even suggests reasons to the other party as to where they believe their behaviour has fallen short of what it should have been. When the Applicant applies to the Court they are confident that the other party has already agreed to allow the divorce to proceed and as long as there is some substance to the allegations, it is unlikely that the Court would prevent the divorce from proceeding.

Owens v Owens was not a collaborative case. Mr Owens took exception to the allegations which Mrs Owens made against him and he argued against them in Court. The Judge found that they were flimsy and refused Mrs Owens a divorce. If the couple had engaged in the collaborative process, the outcome may have been very different.

The President of the Family Division of the Court, Sir James Munby, was critical of the fact that the law is so out of date, but he stated that as Judges, their task is to state the law, not make the law. It is to be hoped that Parliament changes the law in the not too distant future. Meanwhile, couples would be well advised to use the collaborative process to avoid an outcome such as in the Owens case.

For further information, please contact Nicola Matthews, a Partner at Hay & Kilner and a qualified Collaborative Lawyer

Call 0191 232 8345 or email nicola.matthews@hay-kilner.co.uk