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What I’ve missed in the last year – No Fault divorces

Our People - Loretta Orsi-Barzanti
3 September, 2018

So, I’m now back in the office, after a years’ absence, due to maternity leave. And boy, am I glad to be back – spending time with other like-minded adults, drinking my coffee hot, before it gets forgotten because of the kids and I haven’t yet had to pick out any half-eaten Cheerios out of my hair. Hooray for me!!!

A lot has happened in the bright world of family law whilst I’ve been raising tiny humans this past year, including a very interesting case about no-fault divorces. If any of you have missed all the info, the articles in the papers or the news coverage on this case, I’ve got you covered.

It all started with Mr & Mrs Owens who got married way back when, in 1978 when Mr Owens was 40 and Mrs Owens was 28. The pair got along well enough, and 34 years later, Mrs Owens decided enough was enough and wanted a divorce. She issued her divorce petition on the ground of “unreasonable behaviour” in May 2015. Mr Owens defended that petition (which, is very, very rare!!!). The divorce was contested and the final hearing on this was heard on 15th January 2016. HHJ Tolson QC heard from both parties at the final hearing and determined that even though Mrs Owens had 27 separate allegations of “unreasonable behaviour”, that Mr Owens had not not behaved in such a way that Mrs Owens could not reasonably be expected to live with him. He dismissed her petition.

Mrs Owens appealed the dismissal of her petition. The appeal was dismissed by Munby P in the Court of Appeal who said. ‘What the authorities show is that, in a case such as this, the court has to evaluate what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband, (iii) in the light of all the circumstances and (iv) having regard to the cumulative effect of all the respondent’s conduct. The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent?

Did Mrs Owens give up. Heck NO! She took her case to The Supreme Court. Her case was then heard on 17th May 2018.

Let’s not forget that the role of the Supreme court isn’t to change or reform the law but rather to work out whether or not the law has been interpreted correctly. Lord Wilson, Lady Hale and Lord Mance unanimously stated that Mrs Owen’s appeal was dismissed and that basically it wasn’t the place of the Supreme Court to intervene. Poor Mrs Owens!!! They did, however, invite Parliament to consider replacing the current law. Yay for Mrs Owens! Well, sort of, because even though she can’t currently get divorce, she has been a catalyst for change.

So, what’s the upshot – are there no-fault divorces, or not?

There’s always been two no-fault grounds for divorce – two years separation with the consent of the other party and 5 years separation without the need for consent. The problem with this is that if your soon-to-be ex-spouse wont consent, then you have to wait for FIVE years. FIVE YEARS!!!! That’s an awfully long time however you look at it – even longer, when you are technically still married to someone, who you absolutely loathe/particularly dislike/cannot tolerate/have fallen out of love with.

With Mr & Mrs Owens, their marriage has broken down yet they still can’t formally divorce because they do not meet the criteria currently set down by legislation. Mrs Owens has to wait until February 2020 to issue her divorce petition which will be based on 5 years separation because she moved out of the family home in February 2015.

Do I think this is fair? No, I don’t. I don’t see why people have to remain married for 5 years, when they are for all intents and purposes not living as a married couple, all because the other party wont consent to the divorce going through. The question I ask of the spouse not consenting is – why would you want to remain married to someone who clearly does not want to be married to you? There may be, in some circumstances, financial, religious, social or reasons for wanting to remain husband and wife, but shouldn’t both parties have an equal say?

Some people say that we live in a throw-away culture. When something is broken, we just shove it to the side and leave it. We give no thought to fixing it. The same can be said for marriages. A lot of people say that its so easy to get divorced now (no/less stigma, easier process, better knowledge of the divorce system, easier access to legal advice) that people either can’t be bothered or don’t want to work on their marriage and move on to the next person. They say that way back when, people were more likely to work on their marriages more and not just give up at the first hurdle. This is a generalisation and not true across the board. A no-fault divorce would probably add to this – it would make it easier to get a divorce and that is what people are probably afraid of.

I have seen “no-fault” and “fault” based divorces go through the process many times and I can definitely say that those who have gone down the no-fault route (separation grounds) have always had a better relationship with each other at the end of the divorce. Mainly because they haven’t had to dredge up their dirty laundry for people they don’t actually know, to dissect and determine, whether that behaviour is bad enough to warrant getting a divorce. I don’t think anyone really wants to re-live all the bad parts of a marriage in front of someone they don’t know when they’re trying to get their unreasonable behaviour examples together. Worse still when those examples were really quite hurtful to your client and you have to turn around and say – “actually, that probably wont fly in front of the judge”.

Either way, the system needs to be looked at to see where positive steps can be taken to move the divorce process forward so that it is more up to date. Will changes be made? Probably not any time soon, I’m afraid – Parliament is so tied up with Brexit, they probably don’t have time to think about no-fault divorces!

Head of Family (Private Law)
Loretta Orsi-Barzanti is an associate solicitor and head of our Private Family Team. She advises on all aspects of Public and Private Law.

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