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No-fault clause: Why getting a divorce is not always easy

PUBLISHED: 12:37 19 July 2017 | UPDATED: 12:37 19 July 2017

Archant

In the absence of a no-fault clause getting a divorce is not always easy

George Bernard Shaw is reputed to have said “Marriage is an alliance entered into by a man who can’t sleep with the window open and a woman who can’t sleep with the window shut”. For some spouses, such issues are part and parcel of a normal marriage but for those who have been married a long time, there can be any number of reasons why a husband or wife may decide that they no longer wish to be together.

There are about 110,000 divorces in this country every year, and that is about 600 people who get divorced every day. Every divorce is based on an irretrievable marriage breakdown but this has to be proved by one of five different facts. Three of those facts are time related, including being separated for two years for a divorce by consent or being separated for five years with no consent required. However if a couple want to start divorce proceedings within the two year period, then they must use what is called a ‘fault based ground’, which means either citing the other party’s unreasonable behaviour or their adultery within the last six months.

The divorce legislation was brought into statute in 1973 and is now therefore over 43 years old and society has changed a lot in that time. Just about three quarters of all divorces today are based on a fault ground, with the majority being based on the other spouse’s unreasonable behaviour. The divorce itself can be a relatively simple paper process and the court costs for divorce proceedings from start to finish are £550.00. The government are also making the process easier by encouraging the filing of online petitions and simplifying the documentation.

The process however, has not been so straightforward, simple or inexpensive for Mrs Tini Owens, who at a recent court of appeal hearing lost her case to be divorced from her husband on the basis of his unreasonable behaviour. In this high profile case, which has received significant press attention, Hugh Owens decided - regardless of the fact they had been separated since February 2015 - that the marriage had not broken down, or at least not on the basis of the facts set out by Mrs Owens. These included not providing her with love, attention and affection and there being frequent and distressing arguments.

Unusually, Mr Owens decided to defend the divorce proceedings and perhaps even more unusually, the judge in London agreed with him, despite the amended petition containing 27 specific allegations of the husband’s unreasonable behaviour. The judge complained that the petition was hopeless, was scraping the barrel and lacked beef. He thought that the wife had exaggerated the context and gravity of the husband’s behaviour and ordered substantial costs against her.

Regrettably the Court of Appeal’s hands were tied because of the limitations in what they could do on appeal. Handing down his judgment, Sir James Munby asked himself the question as to whether the law was in a remotely satisfactory condition. He clearly thought not when he later noted that it was hypocritical when spouses and their family lawyers still have to use fault based grounds to progress divorces.

It is against most specialist family lawyers’ code of conduct to be inflammatory and to encourage conflict and confrontation, but this essentially seems to be the outcome of the Owens’ case. Mrs Owens has now taken her divorce to the Supreme Court and it is to be hoped that reason will prevail, and that she will not have to wait until she is 70 years old and there has been a five year separation before she can divorce and sort out the finances.

Many other countries including America and Australia have no fault divorce and it is surely time that England follows suit. As Neil Sedaka sang in 1975, breaking up is hard to do. And as this case proves, for some the current law can make it even harder.

For advice on the full range of family law issues please contact Kerry Fretwell in the Reading office of Penningtons Manches LLP on 0118 982 2640 or visit penningtons.co.uk

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