No Fault Divorce
While most people get married with the hope and intention it will be for life, sadly, statistics show that 42 per cent of marriages in the UK now end in divorce, with the majority taking place within the first ten years.
To obtain a divorce, the person seeking the divorce has to establish that the marriage has irretrievably broken down by relying upon one of five facts, three of which require a period of separation of at least two years. As many separating couples do not want to wait that long, the only options available to them are grounds of adultery or of ‘unreasonable behaviour’.
In my experience, it is becoming increasingly common that couples do not wish to blame each other, and have essentially just grown apart over time – but currently, the law decrees that such blame does need to be attributed, which can lead to time and money being spent arguing over allegations just so a divorce can proceed. The resultant bad feeling between the separating couple can then lead to arrangements for the likes of childcare and financial issues becoming more contentious.
It does seem that in today’s modern world, some reform is needed of our divorce laws, which have been in their current form since 1973. Resolution, the Association of Family Lawyers which promotes a constructive approach to resolving family issues, has long campaigned for the concept of ‘no fault divorce’ to become a reality. No fault divorce is already in place in America, Australia, the Netherlands and Scotland, and its positive impact through removing the necessity for apportioning blame has been clearly shown.
The case of Mrs Tini Owens has again brought the need for reform into the spotlight, through the wrangling between she and her husband over claims of ‘unreasonable behaviour’, which has now reached the Supreme Court. This is a very unusual case, and in over 25 years of practice, I have only dealt with one instance of a client wanting to contest the divorce to a final hearing – the client was advised this would fail and it did, resulting in significant legal fees being incurred through having to pay the costs of both sides.
In the case of Mrs Owens, she claimed unreasonable behaviour on the basis that Mr Owens did not give her love and affection, had mood swings which caused arguments and made derogatory remarks about her in front of friends and family. Mr Owens challenged this and claimed the marriage had not broken down – the Judge initially agreed, saying these allegations were of the “minor kind of altercations to be expected within a marriage”.
The case then went to the Court of Appeal, where the appeal was dismissed on the grounds the Judge had applied the law correctly, and Mrs Owens has now taken her fight to the Supreme Court. We await judgement from that, and whether any reform of divorce laws may arise as a result, although the concern is that if Mrs Owens is not successful in her challenge, Judges may become more reluctant to grant divorces based on unreasonable behaviour in cases where the allegations are deemed to be somewhat flimsy.
Whatever the outcome of Mrs Owens’ case, it is clear that the current outdated system needs to be changed. Resorting to divorce is a stressful enough time without couples being encouraged to become polarised in their positions, making the vital issues of children and finances even more difficult to resolve.
Elizabeth Gallagher, a leading specialist family lawyer and collaborative practitioner, is a consultant at law firm Sintons. To speak to her, contact Elizabeth on 0191 226 7813 or Elizabeth.Gallagher@sintons.co.uk.