Is it time for no fault divorce in England and Wales?

Tini Owens first hit the headlines last year, when the Court of Appeal ruled that she could not divorce her husband of 40 years as there was insufficient evidence of unreasonable behaviour on the part of her husband, who was defending the divorce.

In a landmark ruling, the Supreme Court has now upheld that decision, meaning Mrs Owens will have to stay married to her husband until at least 2020, when she will be apply to apply for a divorce on the basis that she and her husband will have lived apart for at least 5 years.

Why does the Owens vs Owens case matter?

The case has gained national attention because of the way it has placed a spotlight on English divorce law, which many consider to be outdated. Under the current rules, anyone wishing to get a divorce in England and Wales needs to prove that their marriage has irretrievably broken down and that their partner is at fault.

A growing number of people, including many divorce lawyers, feel that this requirement to assign blame introduces unnecessary conflict into divorce proceedings.

This can not only cause additional stress for divorcing couples, it also creates the risk of situations such as the Owens vs Owens case, where one of the spouses decides to defend the divorce, potentially trapping the other in a loveless marriage.

Is it time for a change in the law around divorce?

The situation Tini Owens has found herself trapped in has prompted fresh calls for the introduction of ‘no fault’ divorce in England and Wales. This would mean that anyone wishing to apply for a divorce could do so without needing to place blame on their spouse.

It is thought by supporters of no fault divorce that this would speed up the divorce process and minimise the potential for conflict. It is argued that nobody should be forced to stay in a marriage they no longer wish to be part of and that the current rules are out-of-date and unfair.

No fault divorces have already been introduced in Scotland by the Family Law (Scotland) Act 2006 and they are also allowed in a number of other countries, including the USA and Australia.

Referring to the Owens vs Owens case, Supreme Court president Lady Hale said she found it "very troubling" but that it was not the judges’ place to "change the law".

Former family judge Baroness Butler-Sloss has introduced a private member’s bill in parliament aimed at encouraging the government to introduce no fault divorce. However, even if the bill passes, it only requires the government to hold a review into English divorce law and consider whether to introduce no fault divorce. This means there are no guarantees that any concrete action will be taken, or over what timescale.

What are the grounds for divorce in the UK?

Under the current divorce laws, anyone wishing to get divorced in England and Wales needs to show that their marriage has broken down due to one of the following five reasons:

1. Adultery – This is where your spouse has been unfaithful with someone of the opposite sex. Again, this is a contentious issue as the current definition of adultery does not cover same-sex infidelity, which instead falls under ‘unreasonable behaviour.
2. Unreasonably behaviour – This is the most commonly used reason for divorce and means that your spouse has behaved in such a way that you can no longer reasonably be expected to live with them. This can cover a wide range of issues, including things such as your spouse spending too much time at work or out with friends, refusing to contribute financially and refusing to support you emotionally. It can also include much more serious issues, such as alcoholism, drug addiction and domestic abuse.
3. Desertion – This is where your spouse has left you for at least 2 years out of the last 2.5 without your agreement, without good reason and with the intention to end your relationship.
4. Separation for at least 2 years – This applies if you and your spouse have lived separately for at least 2 years and your spouse agrees to the divorce.
5. Separation for at least 5 years – This reason can be used if you have lived separately for at least 5 years, even if your spouse does not agree to the divorce.

As with the case of Tini Owens, this means you will potentially have to wait 5 years to apply for a divorce if your spouse successfully defends your application, plus the time it then takes to actually apply for and receive your divorce.

How can you avoid the risk of your spouse defending your divorce?

In spite of the need to place blame during divorce proceedings in England and Wales, it is still relatively rare for a divorce to be defended. Even so, this is definitely a situation you want to avoid wherever possible because, as with the Owens’ case, there is no guarantee your divorce will be granted and it will typically cost you a lot of time, money and stress to find out.

There are various things you can do to minimise the chances of your spouse defending your divorce, including:

• Carefully consider what reasons to use in your divorce petition – for example, most people will be less likely to dispute unreasonable behaviour, such as spending too much time at work, than they will be to admit to an affair.
• Communicate your intentions with your spouse wherever possible – if you can discuss your divorce petition with your spouse and agree the reasons you intend to give for the divorce, they should have no reason to raise an objection.
• Use mediation or collaborative law to resolve the practical details of the divorce – if you can keep the whole divorce process amicable, your spouse is less likely to want to cause problems and risk making the process acrimonious.

Crisp & Co’s divorce lawyers specialise in taking a non-confrontational approach to divorce, helping to keep unnecessary conflict out of divorce proceedings. We can advise you on everything from what reasons to cite for your divorce in the petition to handling the practical issues surrounding your divorce, such as financial settlements and arrangements for children in a non-confrontational way.

To find out more, speak to one of our expert divorce lawyers now by calling 020 3797 4952 or use the enquiry form below to request a call back