No Fault Divorce

No Fault Divorce

The recent case of Tini Owens has again brought into focus the archaic divorce system in England. The law since 1973 requires those wishing to divorce to prove their marriage has “irretrievably broken down”.

Mrs Owens appealed to the Court of Appeal to allow her to divorce her husband, Hugh Owens. Mrs Owens had alleged that the marriage had irretrievably broken down due to his unreasonable behaviour. However, the Court of Appeal upheld an earlier Court decision that whilst the marriage had broken down, her allegations were of the “minor kind of altercations to be expected within a marriage”.

The Court of Appeal decided that the original Judge had not made any error in the interpretation of the law and therefore did not feel able to grant Mrs Owens her divorce. For matters to change, the government would have to change the current “fault-based” divorce system.

At present, divorcing parties must lay blame on the other party in order to obtain a divorce, unless they are willing to wait for at least a 2 year period of separation.

The situation is even worse for same sex couples. They have to rely on unreasonable behaviour as evidence of the marriage having irretrievably broken down, as adultery is not available in a same sex marriage as grounds for divorce.

At Bell Lax we often have to explain to clients that it is not sufficient for them to state that they have “just grown apart” or “fallen out of love”; they need to prove unreasonable behaviour on the part of their spouse.

This means that at the commencement of divorce proceedings, the parties begin by having to make allegations against their spouse which can often cause difficulties and resentment when they come to resolving their finances and arrangements for any children.