The current law relating to divorce in England and Wales requires there to be an element of fault for those wishing to obtain a divorce without waiting two years from separation. This “blame game” only serves to promote conflict and acrimony in an already difficult and highly emotional situation, particularly where children are involved, and goes against the constructive approach to divorce encouraged by Resolution. We are often approached by clients who wish to divorce immediately but do not want to blame their husband or wife for the breakdown of the marriage. We all know that in most cases there are a myriad of reasons for why a relationship fails and it is not always just one party’s fault.
There is one ground for obtaining a divorce and that is that the marriage has broken down irretrievably. Irreconcilable differences is not a ground that can be relied on as it can in other countries. This breakdown must be proved by one of five facts: adultery; unreasonable behaviour; desertion; two years’ separation with consent; five years’ separation without consent.
Unreasonable behaviour is the fact most commonly relied upon where couples want an immediate divorce. It involves one party making allegations against the other, even where a couple has simply drifted apart and no longer wishes to be married – this is a shame and leaves many clients in the unenviable position of wanting a divorce in order to move on with their life, but not wishing to blame their spouse for the failure of the marriage.
There is increasing support among family lawyers and the public for reform to divorce law to introduce “no fault” divorce. The recent case of Owens -v- Owens in which the Judge refused to grant the wife a divorce on the ground that her husband’s alleged unreasonable behaviour was part and parcel of what happens in a marriage and has highlighted the need for a change to the current law. If Mr Owens will not consent to a divorce based on two years’ separation (which he is unlikely to), Mrs Owens will have to wait until 2020 to petition for a divorce based on five years’ separation which does not require consent. This is a long time to remain trapped in an unhappy marriage.
This decision has led some family lawyers to review their practice of keeping the particulars of unreasonable behaviour mild and anodyne as encouraged by Resolution for fear of having a petition rejected by the Court which would lead to delay and increased legal costs. The Court of Appeal has upheld the Judge’s decision. If Mrs Owens is granted permission to take her case to the Supreme Court it is likely that the case for a change in the law will be given further support. It will then be up to the Government to change the law and, for many family lawyers and divorcing couples, this change cannot come soon enough.