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A Right To Divorce?

Posted: 04-04-2017

After the recent Court of Appeal decision in Owens v Owens hit the press and caused shockwaves, many people have asked me “Doesn’t everyone have the right to a divorce?”

The simple answer is no.

Some clients believe they can divorce quickly and amicably on the basis of a no fault divorce or irreconcilable differences like in other countries.  However, England and Wales operates a fault based system, which means that there has to be a reason for the divorce to take place.

There are five facts which can currently be used to prove the irretrievable breakdown of the marriage, and of those the most contentious, adultery and unreasonable behaviour, are the most widely used because they allow a person to initiate the divorce process immediately.

The only facts for divorce with an element of no fault, are the facts of two years’ separation with consent or five years’ separation if consent is not forthcoming.  This is a long time to wait and often leaves parties in limbo, separated, yet not divorced.  If a client’s spouse is particularly difficult and does not provide their written consent after two years, the client would need to wait a long five years before bringing proceedings.  It is no wonder the more immediate fault based facts of adultery and unreasonable behaviour are more common.

In Owens v Owens, the Court of Appeal refused to overturn a Family Court ruling which said that Mrs Owens could not divorce her husband after 39 years of marriage.  Mrs Owens had stated she was in a “loveless and desperately unhappy” marriage but this was not found to be enough to satisfy the ground of irretrievable breakdown.  The husband Mr Owens had defended the divorce stating they had a good few years left together to enjoy.

This has now left Mrs Owens still married, and having to wait five years to be eligible for a divorce, regardless of whether her husband still objected.  The only other alternative would be to appeal once more to the Supreme Court, yet this would be a costly exercise with no guarantee of success.  This is far from satisfactory. Defended divorce petitions are rare and it is difficult to see what either party has gained from this litigation.

Attempts to change the law on this issue have foundered.  The Family Law Act 1996, provided for no fault divorce in England and Wales. However, after a change of government it was decided not to implement the parts of the act relating to no fault divorce.  More recently in October 2015, the No Fault Divorce Bill 2015-16 was introduced but did not progress.

Resolution, a body of 6,500 family lawyers and other professionals committed to the constructive resolution of family disputes, have lobbied hard for no fault divorce to be introduced into this country.  Indeed, the current chair Nigel Sheppard has stated this to be his priority to “it is time to end the blame game”.  However, we will need to watch carefully to see if Resolution’s work, Mrs Owens’ case and public support brings in much needed future changes to divorce law in this country, particularly with the government’s attention being consumed with the far larger concern of Brexit and deciding which EU laws will be adopted domestically.

Owens v Owens [2017] EWCA Civ 182