No-Fault Divorce Court Appeal in Spotlight

A hugely anticipated divorce hearing kicked off in the UK’s highest court this week, no doubt prompting further questions to the government around reforming ‘outdated’ family law.

The case of Owens v Owens will be heard by the Supreme Court after the Court of Appeal ruled that it could not interfere with a previous decision to refuse to grant Mrs Owens a decree nisi, even though the judge had found that the marriage had indeed broken down.

In what is described as a ‘rare example of the court rejecting a behaviour petition on the ground that the husband’s behaviour was not objectively bad enough to make it unreasonable for the wife to live with him’, this case brings into question the fact that, at present, the law states that couples are unable to divorce without blame unless they have been separated for two years. Further to this, a spouse has to wait five years if their former partner does not agree to a divorce, prompting Resolution to call the legislation ‘outdated and ‘unfair’.

Lady Hale, Supreme Court president, has permitted Resolution to get involved in this case because they ‘concentrated on the legal rather than the policy arguments. What the current law is and what the law ought to be are quite separate matters’.

Whatever the outcome of this appeal, it does bring to light the fact that, at present, couples have to cite at least one of five reasons as to why their marriage has irrevocably broken down. For those in a similar scenario to Mr and Mrs Owens where their reasoning does not fall into one of those categories, this may mean a delay of either two or five years before a decree nisi can be obtained.

However, some do believe that a ‘no-fault’ divorce system would undermine the institution of marriage. Colin Hart, Chairman of the Coalition for Marriage and Director of the Christian Institute says a ‘pure no-fault’ system could lead to quicker divorces that would ultimately ‘trivialise marriage’ in the long-term.

Catherine Polli, Family Partner says ‘this is a disappointing but anticipated decision, which underlines quite how out of date the divorce law is in this country. Society’s view on marriage has changed greatly in the 45 years since the current law came into force and a change in the law as to how married couples can obtain a divorce is long overdue.’

MORE INFORMATION 

If you would like further legal advice on divorce, or for additional comments relating to the Owens v Owens case, please contact our Family Law department on 01708 229444 or email us using the form to the right to arrange a free initial consultation.The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of May 2018.​