As it currently stands, there is only one ground on which a Petition for divorce may be presented to the Court by either party to the marriage and that is that the marriage has broken down irretrievably. But what does that mean? To evidence the ‘irretrievable breakdown’, the person seeking the divorce can rely on one of five facts:
– Unreasonable behaviour;
– Separation, for a period of two years, this to be with the agreement of the other spouse; or
– Separation, for a period of five years.
In circumstances when consent of the other party is not guaranteed and adultery is not relevant, the only remaining option is to cite ‘unreasonable behaviour’. And so it was for Mrs Owens.
Mr and Mrs Owens were married for 39 years. They separated in 2015, and were living in separate homes. Mrs Owens later petitioned for divorce on the basis of her husband’s unreasonable behaviour. The Petition referenced “continued beratement” of her for an earlier affair and that the cumulative effect of his behaviour made it intolerable to live with him. Mr Owens objected to the divorce, telling the Court that the differences were routine for any marriage, and in the first instance, the Judge decided that Mrs Owens’ allegations of behaviour were “at best flimsy”. Her application for a divorce was refused. Unsurprisingly, Mrs Owens appealed and the case was then heard by the Court of Appeal. It was decided that the original Judge had been correct in his findings. The appeal was dismissed. Without Mr Owens’ consent, Mrs Owens must now wait until 2020 to bring proceedings following a five year separation.
The outcome of Owens v Owens inevitably creates tension for family practitioners. At Trethowans, we are members of Resolution, and are therefore committed to a Code of Practice which requires us to work in a constructive and non-confrontational manner at all times. This method of working is pertinent when drafting allegations of behaviour in divorce Petitions. The sensible approach is to strike a balance between satisfying the Judge that the marriage has irretrievably broken down but without unnecessarily antagonising the other party. In light of Owens v Owens however, is there now an increasing risk that milder Petitions, Resolution compliant Petitions, will not satisfy the hurdle?
Owens v Owens has also highlighted a longstanding issue, being that the need to blame a party for the marriage breakdown can cause unnecessary difficulty and conflict. The introduction of ‘no-fault’ divorce could greatly assist in reducing the inevitable tensions that arise on marriage breakdown. Perhaps more importantly, the ‘no-blame’ culture should allow couples to focus on more important issues, namely arrangements for the children and the financial consequences of divorce.
Baroness Hale, amongst others, takes the view that removing the need to allege fault and blame would encourage couples to look ahead, rather than being consumed by the difficulties of the past, and forge a positive future, particularly where the ongoing needs of children must be prioritised.
Resolution members have been campaigning for no fault divorce for some time, the most recent proposal being that one or both spouses can give notice that the marriage has broken down irretrievably. The divorce can then proceed and after a period of six months, if either or both spouses still believe they have made the right decision, the divorce is finalised.
Legal commentators have spoken plainly about the conflict between the Court remaining so heavily involved in the decision as to whether a marriage has or has not broken down and yet in other matters wanting to actively reduce their involvement, for example in the negotiation of financial settlements on divorce. With the ever increasing popularity of alternative dispute resolution forums, the focus being on the most appropriate option for the couple, it is clear that autonomy of adults should be more freely respected. Sadly, the option to file a joint Petition on a no fault basis provides no remedy for Mrs Owens, but the need for a more pragmatic and sensible means to dissolve a marriage cannot be ignored.
Article written by Kate Stovold