The debate surrounding our fault-based divorce system is not a new one. However, the recent case of Mr and Mrs Owens, in which Mrs Owens appealed the court’s decision to reject her divorce petition, demonstrates the need for urgent family law reform.
Currently, in order to petition for divorce one party is required to prove that the marriage has broken down irretrievably. This can be evidenced by adultery, unreasonable behaviour, desertion or separation (of two years with the consent of both parties, or of five years without consent).
Couples wishing to divorce without such delay are required to rely on one of two fault-based facts; adultery or unreasonable behaviour. However, a petitioner cannot rely on their own adultery as evidence of the marriage breakdown, and so for many, as in Mrs Owens’ case, unreasonable behaviour is the only option.
It is rare for divorce petitions to be contested, with disputes more commonly arising in relation to the parties’ children or finances. However, Mr Owens refused to accept the divorce petition, asking Mrs Owens to prove that the marriage had in fact broken down irretrievably. A task that the family court ruled she had failed to achieve.
Current guidance encourages lawyers to minimise conflict, promote amicable proceedings and explore out of court resolutions, such as mediation. We can attempt to do this by sending a draft petition (with mild examples of unreasonable behaviour) to the other party, in the hope that the contents can be agreed and proceedings can begin as amicably as possible. However, the guidance is directly contradicted by the current law which requires one party to place blame on the other. Commencing proceedings in this way, in what is already an incredibly emotional time, can lead to increased animosity, upset and dispute.
A move towards no fault divorce?
A move to a no-fault divorce system would allow couples to begin proceedings on a mutual basis. This approach would complement the guidance and increase the chance of parties reaching an amicable solution. The hope is that with more couples commencing divorce proceedings on a less confrontational note, the number of out of court resolutions would increase and in turn increase the court time available for those cases where litigation is unavoidable.
The law respects an individual’s autonomy to enter a marriage and it protects individuals from being forced into marriage against their will. However, the law does not protect an individual’s autonomy to leave a marriage, and in cases such as Mrs Owens’, it forces individuals to remain married for five years longer than they wish.
Mr Owen argued that the couple still have a “few years” left to enjoy. In reality, Mrs Owens is facing five years of unhappiness, a substantial legal bill that will have inevitably diminished the parties’ financial “pot”, and potential financial proceedings with Mr Owens that will have undoubtedly been made more difficult and adversarial by the manner in which the divorce has begun. All of this could have been prevented by a simple and necessary change in the law.
Preparation for Brexit has provided the government with the perfect opportunity to review legislation. We need to take advantage of this opportunity to finally modernise our divorce laws, and implement a reform that is not only necessary, but will also be supported by the public (according to a recent You Gov poll, 69% of people polled support no-fault divorce).