The wait for ‘no fault’ divorce reform continues…

We wrote last year about proposed legislation intended to introduce a more readily available ‘no fault’ divorce option to divorcing couples in England & Wales.

Last month however these plans were put on indefinite hold as the Government confirmed that it had no current plans to reform divorce law at this time.  Although the present plans for reform appear to have stalled, a Ministry of Justice spokesperson did comment that the Government was still considering what further reforms to the family justice system may be needed.

The current divorce law again found itself under scrutiny in the press last week, and was widely covered on social media.  This most recent publicity followed a decision by the Court of Appeal to refuse a wife’s divorce petition which cited her husband’s unreasonable behaviour.  This case was quite unusual in that it involved defended divorce proceedings.  The wife (Mrs Owens) believed that the marriage had broken down but her husband (Mr Owens) believed that the marriage had a few more years to run.  Although the couple had been separated since February 2015, the Court found that Mr Owens had not behaved in such a way that Mrs Owens could not reasonably be expected to live with him.

Mr and Mrs Owens’ situation is quite rare.  In the overwhelming majority of cases when one spouse considers that the marriage has broken down, the other spouse will invariably follow suit, albeit sometimes with a degree of reluctance.  A full copy of the Court of Appeal’s judgment can be found here.

Despite the unusual circumstances of Mr and Mrs Owens’ divorce, the case once again raises the question of how easy should it be for a marriage to be dissolved if one spouse genuinely ‘wants out’ believing the marriage to be at an end?

The present divorce regime is based around demonstrating that a marriage has irretrievably broken down.  This irretrievable breakdown can be shown in 1 of 5 ways.  The two fault based reasons which allow for immediate divorce (after the first anniversary of the marriage) are adultery and unreasonable behaviour.  The three non-fault based reasons are a two year separation with both spouses consenting to the divorce, a two year desertion by one spouse, or a five year separation at which point the consent of the other spouse is not required.

Having refused to grant Mrs Owens’ behaviour petition, it would appear that she will now be forced to wait until 2020 at which stage she and Mr Owens would have been separated for five continuous years.  It is possible that a divorce could take place earlier if Mr Owens was to lend his cooperation to a divorce on the basis of a two year separation, or if there is a change of circumstances.  The question is whether this is all necessary or reasonable?

Despite the Court’s refusal to allow Mrs Owens’ petition to proceed, one of the Appeal Judges did recognise that many hold the view that the law is badly out of date, and that those who held that view may be right.  Could this be a further indication that the current system is in need of reform?

The current consensus within matrimonial circles seems to indicate that whilst ending a marriage should not be made trivial there should be some reform to the current system.  The wait goes on…

Posted by Matthew