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The UK set to re-couple with no-fault divorces

February 2019

Following the case of Owens v Owens [2018], where a woman was denied a divorce despite being separated from her husband for nearly three years, our matrimonial laws have come under renewed scrutiny. Justice Secretary David Gauke is preparing for a consultation on whether a no-fault divorce should be made available once again. In the UK there is only one ground for divorce- the irretrievable breakdown of the marriage. This must be evidenced by one of five reasons:

  • Adultery
  • Unreasonable behaviour/conduct
  • Desertion
  • Two years separation with consent
  • Five years separation without consent

This means that unless there has been some fault (i.e. one person has acted unreasonably or committed adultery) the earliest a divorce can be filed is 2 years after separation and only then if both parties agree.

In the unfortunate case of Tina Owens, her husband did not consent to the divorce and, as she was unable to substantiate that his behaviour satisfied the objective test of unreasonableness, the Supreme Court ruled that she would have to wait until the five year separation mark in order to file for divorce. Therefore, Mr and Mrs Owens cannot separate their assets, resulting in both living on the same property albeit in different dwellings. As the current law stands, Mrs Owens will be trapped in this marriage until 2020. Of course, the refusal by Mr Owens to consent to the divorce after such a period of time separated is unusual, but the law still allows for this potential injustice.

As well as possibly leaving people stuck in unwanted marriages, the current law has also been criticised for exacerbating relationship break downs. For couples who have decided to divorce relatively amicably, two years is long time wait. In such cases it is not unusual for unreasonable behaviour to be listed as the reason for the irretrievable breakdown of the marriage, with the respondent agreeing with the petitioner’s evidence in order to speed up the process. Five points of unreasonable behaviour have to be listed and the drafting of this can often result in antagonising issues within the relationship. There is concern that the fault based divorce therefore worsens the situation. This is particularly detrimental if children are involved, as the divorcing couple will have to maintain communication after the marriage has ended. For many, the requirement to find and list fault is counterproductive.

The exact details of the Justice Secretary’s consultation are not yet known, but it will hopefully highlight the inconsistencies currently plighting divorce proceedings. We at Norrie Waite and Slater await the findings with great interest!

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