It’s Nobody’s Fault…19th April 2017

The recently publicised case of Tini Owens, who was refused a divorce from her husband after 39 years of marriage, highlights the need for a no fault divorce system in England and Wales.

Mrs Owens issued divorce proceedings against her husband on the grounds of ‘unreasonable behaviour’. Her husband opposed the proceedings. The Court ruled that Mrs Owens had not proven her marriage had irretrievably broken down even though she was desperately unhappy, after allegations of her husband’s unreasonable behaviour and after her affair with another man. Judge Robin Toulson QC described Mrs Owens’ allegations against her husband as ‘minor altercations of a kind to be expected in a marriage’ and his decision was upheld by the Court of Appeal last month.

Family Lawyers have lobbied Parliament to introduce a no fault divorce system that removes completely the requirement to prove one of the five “facts” that are currently required under the Matrimonial Causes Act 1973 (adultery; unreasonable behaviour; desertion for a period of two years; with consent after two years’ separation; or five years’ separation). In its place, Resolution (formerly Solicitor’s Family Law Association) supports a single basis for showing the irretrievable breakdown of a marriage where one or both parties can declare their marriage has broken down and if, after a waiting period of six months, either or both hold the same view then the divorce would be granted. Citing fault would not be an option, and mutual consent would not be required.

Since most separations are extremely stressful, emotionally charged and a challenging time for both spouses, removing the blame and fault from the outset would better enable spouses to work together to discuss and resolve issues such as children and financial matters. It is also conducive to parties working together with a mediator or their collaborative lawyers and other forms of dispute resolution.

The Government has recently stated it currently has no plans to change the existing law on divorce. Mrs Owens, and potentially other unhappy spouses will therefore have to wait until they’ve been separated five years in order to finalise their divorces. Neither party can get closure – their marriage is over but they cannot move on . Until the law is changed the ‘blame game’ will continue.