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Is divorce law in England and Wales outdated?

4 minutes, 25 seconds

First4Lawyers, May 22, 2018

Many people believe you can divorce in England or Wales, whether your spouse agrees or not. It’s a free country after all, right?

However, there is currently a case being heard at the UK Supreme Court that suggests otherwise. In the case of Owens v. Owens, only one party wishes to divorce but the courts have so far rejected the petition. Is this case a sign that things need to change?

In order to get a divorce under current law in England and Wales, a couple must prove to the court that their marriage has permanently broken down. This must be proved by at least one of the following reasons:

  • Unreasonable behaviour
  • Adultery
  • Desertion for more than two years (in the last 2.5 years)
  • Two years separation (if the divorce is agreed to by both parties)
  • Five years separation (if only one party agrees to the divorce)

The case of Owens v Owens is unusual and is being cited as a landmark case, because in most cases divorce is uncontested and is granted. Mrs Owens wishes to divorce her husband, but he is refusing. They have been together 40 years, and their children have grown up.

Mrs Owens has said she feels as if she is locked in a loveless marriage, and says she has been unhappy for a number of years. However, Mr Owens disagrees. He says they still have a ‘few years’ left to enjoy together.

Unreasonable behaviour must be proved

Under the Matrimonial Causes Act 1973 the law currently states that Mrs Owens must prove unreasonable behaviour by Mr Owens as they have only been living separately for three years, rather than the five required if only one party agrees to the divorce.

Mrs Owens has cited 27 allegations of her husband’s ‘unreasonable behaviour’, including that she was ‘constantly mistrusted’ and she felt unloved because he was ‘insensitive in his manner and tone’.

Mrs Owens has already taken her case to the lower courts, but the divorce was refused by a family law judge who said that Mrs Owens’ allegations were ‘of the kind to be expected in a marriage’. This was upheld by the Court of Appeal, who said that in law their marriage was not broken down.

If Mr Owens had agreed to the divorce then the reasons given by Mrs Owens would likely have been enough. It appears that the courts are not taking into account what Mr Owens refusal shows about his behaviour in the marriage.

Surely, if he really cared about his wife he wouldn’t have allowed things to get this far? And how ‘unreasonable’ does he have to be for the courts to grant divorce?

80% say introduce no-fault divorce

Resolution, an organisation who campaign for improvements to the family justice system, have been given permission to intervene in the hearing. They support the introduction of no-fault divorce and say that this case demonstrates the need for it.

Resolution surveyed its 6,500 members and found that 80% believe that the introduction of no-fault divorce would reduce conflict and make it easier for agreements to be made out of court. They say that the law as it currently stands forces couples to ‘blame each other when there is no real need – other than a legal requirement to do so’.

However, there are others who believe the introduction of ‘no-fault’ divorce would undermine the institution of marriage.

Quicker divorce ‘trivialises marriage’

Colin Hart, director of the Christian Institute and chairman of the Coalition for Marriage, is of this view. He says that quicker divorces would ‘trivialise marriage’, and a no-fault system would lead to a ‘race to the bottom’.

However, Resolution contest this, saying: “There is no evidence that fault acts as a buffer to slow the divorce process … The current system is outdated, unfair and unnecessary.”

This was echoed by the chief executive of counselling charity Relate, Chris Sherwood, who spoke to BBC news and said that: “It’s not about making divorce any easier, it’s about supporting people to get the outcome they want… From our experience, when people are getting divorced it’s something that’s been long thought through.”

However, Hart believes that couples who plan to break up should be forced to wait a length period of time before they are granted a divorce. He says this gives couples the opportunity to change their minds, and will also help a person who does not agree to a divorce to come to terms with it.

Resolution disagree again, saying that a six month period is ample time for a couple to decide. Forcing couples to wait either two years, or five years if only one party wishes to divorce, creates conflict and pushes couples to lay blame rather than separate amicably.

We believe that the introduction of no-fault divorce is the best way forward. It is clear that the current system is out of date - a law introduced in 1973 is no longer of relevance to life in 2018. If a couple wish to divorce, that option should be available to them without the need to drag it out and lay blame at each other’s doors. Divorce is not an easy process for anyone, and it shouldn’t be made even harder for couples by an outdated law.

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