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Through no fault of their own..3rd May 2018 Family Law
The case for no-fault divorce looks overwhelming. It is something solicitors, in particular through the family law organisation Resolution, have been calling for for years. It has been discussed so many times before that it is difficult to say anything genuinely new about it.
That said the issue will once again be in the news as the case of Owens v Owens is heard in the Supreme Court on 17 May. In brief, this case concerned a woman who wished to divorce her husband on the basis that he had 'behaved in such a way that [she] cannot reasonably be expected to live with [him]', sometimes known as 'unreasonable behaviour'. He disputed this and although the court found that the marriage had in reality broken down, it was powerless to grant a divorce because the 'behaviours' she had alleged did not reach the standard required to survive the husband's contest and the resulting strict application of the law.
For years, the vast majority of solicitors have been doing their utmost to keep allegations in divorce petitions to the bare minimum in order to avoid inflaming family tensions at possibly the tensest and most stressful point in the couple's lives. Where both accept that divorce is inevitable even if they did not wish for it this approach exists as a workable fudge to avoid the uncertainty (not to mention potential expense) of a couple having to live apart for two years before the legalities of ending their marriage can begin.
Cases where one party formally disputes any part of the divorce petition are extremely rare, less than 1%. Rarer still are those where the petition is rejected in its entirety and the person on the receiving end, such as Mr Owens, argues, seemingly in the face of common sense that their marriage can and should continue.
Professor Liz Trinder and Mark Sefton have shone a light on these unusual 'defended' cases in a new research paper entitled No Contest. The researchers summarise that 'most disputes are generated by the law itself; the law then provides an ineffective, unhelpful and potentially unfair solution to the problems it has caused'. This is just embarrassing.
'most defences are not attempts to save the marriage, but quarrels about who should be blamed, mostly triggered by allegations about behaviour. Claims that the marriage is saveable generally reflect tactical considerations or are wholly unrealistic.'
Unsurprisingly, the researchers recommend what they call a 'simple notification system'. They say:
'Divorce would [in their recommendation] be granted where one or both parties register that the marriage has broken down irretrievably, and that intention is confirmed by one or both parties, following a minimum period of at least six months.'
From my own personal experience this scheme or one like it would take one small but significant hurdle out of the way of separating couples who have so many other difficult issues to navigate: where everyone is going to live, how will they split any debts or assets, what routine is best for the children? It seems uncontroversial but successive governments have failed to grapple with the issue and a law almost 50 years old still dictates how modern marriages are dissolved.
It's hard to know whether the Owens appeal whatever the outcome in that individual case will push public opinion and, more importantly, politicians to a tipping point where reform actually happens. Being a bit cynical, it may depend on what else is going on in the news when the judgement is delivered and who, if anyone, runs with it on social media outside the family law community.
It seems like having the Supreme Court's attention on our outdated divorce laws is the best chance there has been for a long time to sort this out. Speaking as a family lawyer who has to pick up the pieces from this need to find fault week in, week out, all I can say is, come on guys, do the right thing!