Breaking up is hard to do . . but it might be getting easier!

Mark Reeves,  25th September, 2018

Divorce is something which has been very much in the news recently and it is likely that much more will be heard in the coming months

Current state of play

The law as it stands at present provides for only one ground for divorce, namely the irretrievable breakdown of the marriage.

In addition to the sole ground for divorce, it is necessary to rely on a ‘supporting fact’ and there are five of these set out in law. Three of these are ‘fault’ based (adultery, unreasonable behaviour and desertion) and the remaining two are ‘time’ based (two years’ separation where the other spouse consents to divorce, and five years’ separation where the consent of the other spouse is not required).

In the case of ‘unreasonable behaviour’ the precise wording is ‘that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’.

Owens v Owens

The saga of Mr and Mrs Owens hit the headlines in July when the Supreme Court gave judgment in the case of their disputed divorce. Mrs Owens had issued divorce proceedings more than three years earlier but, unlike the vast majority of divorces in this country, this particular divorce suit was defended by Mr Owens. Whilst the divorce petition issued by Mrs Owens had been based around her husband’s alleged ‘unreasonable behaviour’, Mr Owens argued that the marriage had essentially been successful and, as such, the marriage had not broken down irretrievably. The decision of the Supreme Court, which upheld the earlier decisions in the Court of Appeal and the Central Family Court, was that the marriage had broken down, but that Mrs Owens had not made out her ‘unreasonable behaviour’ allegations. The result was that Mrs Owens would have to remain married to Mr Owens until such time as she could pursue a divorce petition based upon five years’ separation. That will not be until 2020.

In making the decision, the Supreme Court applied the law as it currently stands but, at the same time, invited Parliament to review the law.

Consultation

In September, following on from the comments of the Supreme Court, the government launched a consultation concerning reform of divorce law.

The consultation proposes that the sole ground for divorce should remain, but the changes should be made to remove the ‘fault’ and ‘time’ based supporting facts. It is proposed that it should be replaced with a notification process. The consultation runs until 10 December.

Analysis

The case of Owens is highly unusual. However, it has brought the current law and arguments for its reform into sharp focus. Government data shows that there were 110,000 divorce petitions issued in England and Wales last year. Of those, only 2% were defended. Even fewer of the 2% actually proceeded to a contested divorce hearing.

Proposals for divorce reform where put forward in the mid-1990’s as part of the Family Law Act 1996. Those reforms were never enacted and so, at present, the divorce law is still enshrined in the Matrimonial Causes Act 1973. It could therefore be said that it is high time for there to be reform.

The idea of making divorce less confrontational is to be welcomed. At the same time, however, the government will not want to make it too easy for a divorce to take place. A balance will therefore need to be struck. We will have to wait for the outcome of the consultation to see how this will work out.

For the time being, the existing law remains in place and will do for the foreseeable future.

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