In the future, could divorce be allowed without a reason?

Posted 11/10/2018

Last year we reported on the case of Mrs Owens. Mrs Owens petitioned for divorce on the basis of her husbands ‘unreasonable behaviour’.

The Supreme Court have rejected this appeal. Mrs Owens wanted to divorce her husband on the basis that she is unhappy and petitioned on the grounds of her husband’s unreasonable behaviour. Mrs Owens has lost her Supreme Court appeal meaning that she must remain married until 2020 and proceed on the grounds of five year separation.  

Under the current law in the UK, if you wish to issue divorce proceeding, you must rely on one of the five grounds. These are:

  1. Adultery
  2. Behaviour
  3. Desertion
  4. Two years separation with consent
  5. Five years separation

Parties are required to use a fault based ground being adultery or behaviour if they have not been separated from each other for at least two years. This appears to be out dated and unfair to couples where their marriage has come to a natural end or where parties wish to remain as amicable as possible but they are still expected to list reasons as to why they cannot be expected to remain in the marriage.

This can lead to increased tension between the parties and make an amicable separation, not so amicable in practice. It is well known that where parties are not amicable costs can increase between them and any agreement can become very difficult.

In Mrs Owens case she has been left with no other option but to wait until 2020, at which point the parties will have been separated for five years and this will not require her husband’s consent.

Is the law outdated/Need for reform?

There is more and more backing within the legal profession and the public for divorce to be allowed without a fault being relied upon. If parties do not wish to issue proceedings on the grounds of unreasonable behaviour or adultery, couples must remain married for two years to allow them to then issue proceedings on their two years separation. Parties can then not move on with their lives and finalise matters as quickly as they would like to.

The legal profession continues to push for non-fault divorce and one day this may indeed be available with the ministry of Justice currently looking at reforms to the system. The most notable figure in support of the No Fault divorce is the president of the Supreme Court, Baroness Hale.

“It may seem paradoxical to suggest that no-fault divorce is aimed at strengthening responsibility, but I believe that it is. The contents of the [divorce] petition can trigger or exacerbate family conflict entirely unnecessarily. Respondents are encouraged by their lawyers to ‘suck it up’ even though the allegations are unfair. There is no evidence at all that having to give a reason for the breakdown makes people think twice.”

Introducing a no-fault divorce could ease the stress and pain associated with divorce, which can often be made worse by one person alleging certain characteristics about the other parties behaviour. On the other hand, some believe that no fault divorce will be all too easy to get out of and question whether, principally, this goes against the sanctity of marriage and the principle that marriage is for life.

In our experience most clients want an amicable divorce and when drafting the divorce petition we therefore try to keep the particulars to a minimum to ensure that the law is satisfied and to ensure that an already difficult situation is not further inflamed unnecessarily.

Here at Holmes & Hills Solicitors we believe in keeping proceedings amicable as this is in the best interest of everyone involved especially any children. If you are looking to issue divorce proceedings please come and visit one of our family solicitors who will be able to advise you. Our family solicitors are aware of what the Court requires at present and can ensure that your petition is accepted but is drafted in a way that both parties can agree upon.

Holmes & Hills has offices in Braintree, Sudbury, Coggeshall, Halstead and Tiptree and our Family Law solicitors can see you at any of these locations for your convenience. Please contact us to arrange an appointment.

Lauren Howard

Posted 11/10/2018 by:
Lauren Howard
Solicitor in Family Team

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