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No fault divorce – who’s to blame?

The case of Owens v Owens has been of great public interest recently, with lots of media coverage.

It is, in many ways, a very ordinary case with relatively ordinary facts. The couple were married in 1978, set up home, had children then separated in 2015.

What is exceptional, however, is the fact that the divorce has been contested by Mr Owens. Whilst it is common for matters relating to the children or the finances to be contested, and end up in lengthy Court proceedings, only 1% of divorces themselves are ever contested.

The only ground for divorce in this country is that the marriage has ‘irretrievably broken down,’ and this, in turn, is proved by one of the following five facts:

  • Adultery;
  • Unreasonable Behaviour;
  • Desertion;
  • 2 years of separation and both parties consent;
  • 5 years separation with no consent.

Most importantly, the behaviour alleged has to be that of your partner and not your own. This obviously leads to one party feeling blamed, which can, although rarely does, lead to contested proceedings, as in this case.

Mr Owens has contested the divorce disputing the allegations of his unreasonable behaviour. This has led to the case being heard in the High Court and the Court of Appeal, where Mrs Owens has been told her husband’s behaviour was not unreasonable and was “to be expected in a marriage”.

She has also been told that finding herself in a ‘wretchedly unhappy marriage’ is not grounds for divorce.

Her only option in these circumstances would be to wait until five years have passed from the initial date of separation, which would mean she remains in a “wretchedly unhappy marriage” until 2020.

As such this case is now being heard by the Supreme Court and their findings may lead to a fundamental change in divorce law, paving the way for ‘no-fault’ divorces in the future.

This would offer an alternative way to divorce, meaning no one suffers any blame.

In turn, it’s hoped this would allow the more difficult discussions that follow, relating to the children and finances, to start without one party feeling blamed. Going into such discussions is always difficult enough, but with the parties already laying blame, they are often even more difficult.

Resolution, the national organisation of family lawyers surveyed its members and 90% felt the current law made it harder to reduce conflict and confrontation.

No fault divorce would go some way to helping limit the conflict and confrontation that occurs in divorces. These difficult situations are always emotional, painful and upsetting enough for the parties involved and removing some of the blame and hence conflict can only be a positive step towards a simpler, less confrontational divorce process.

What did the Supreme Court decide?

The Supreme Court ruled against Mrs Owens which means that she must now remain married to her husband until 2020. There were some clarifications provided in the Judgment which suggests that the term “unreasonable behaviour” which is widely cited in divorce cases but which the Court has clarified is incorrect to do so. The Judgment provides that it isn’t someone’s behaviour which must be unreasonable but the belief that the other party can continue to live with them.

The Court further ruled that it is not for the Supreme Court to shape the law (changes in the law itself must provide for this through Parliament) but to interpret the law in line with the statute.

The case revolved around the correct interpretation of section 1 (2) (b) of the Matrimonial Causes Act 1973, which states that a marriage can be dissolved on the basis of one spouse’s behaviour.

Until the law may be reformed, family lawyers face the increasingly complex balancing act of keeping the details of “unreasonable behaviour” as non-confrontational as possible whilst ensuring sufficient gravity to the allegations as to satisfy the requirements under s 1(2)(b), which could be a particular concern in domestic abuse type cases.


Lee Wilcockson – BTMK

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