No fault divorce in the spotlight

17th May 2018 Family Law

It's been a busy week for family law in the Supreme Court. Monday and Tuesday saw the hearing of R (Keidan and Steinfeld) v Secretary of State for Education in which an opposite-sex couple are seeking the right to enter into a civil partnership. Today we have the much-anticipated hearing in the case of Owens v Owens.

In a nutshell, Mrs Owens wanted to divorce Mr Owens on the basis of his 'unreasonable behaviour'. In the absence of a no-fault divorce option that avoids a two- or five-year waiting period, this course is taken by tens of thousands of husbands and wives each year. Unusually, Mr Owens disputed the factual basis of his wife's divorce petition and although the court found that the marriage had in reality broken down, it was powerless to grant a divorce because the 'behaviour' she had cited did not reach the standard required to survive the husband's contest and the resulting strict application of the law.

Resolution, a 6,500-strong membership association for solicitors practising in family law, has been given permission to take part in the appeal hearing. It is positive that their voice will be heard though there is a limit to which issues they will be permitted to address. Let's be clear, the Supreme Court cannot introduce a no-fault divorce scheme; only Parliament can do that. Whatever decision it reaches in Mrs Owens' appeal, it will, possibly as never before, shine a light on the outmoded nature of our divorce laws. It is very much hoped that the attention generated by the appeal will kick-start the process of reform.

This month, the government has rolled out a nationwide online application process for divorces. This is entirely sensible. However, this modernity stands in stark contrast to the backward-looking need to blame one party for the breakdown of a marriage, whether under the heading of behaviour or adultery, which you must do to bring your marriage to an end legally without first waiting for two years (or even five in cases where one party opposes the process). Let's hope we don't lose the momentum generated by this case.

You can watch Thursday's hearing live here.

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Samantha Clifford is an Associate Solicitor located in Manchesterin our Family department

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