No fault divorce. What is the future of divorce law?

In the recent decision in Owens v Owens [2017] EWCA Civ 182, [2017] All ER (D) 23 (Apr) the Court of Appeal confirmed that the test in s 1(2)(b) of the Matrimonial Causes Act 1973 (MCA 1973) is an objective/subjective hybrid.

The existing divorce law in England and Wales states that in order for a divorce to be granted, it is necessary to prove that the marriage has broken down. This needs to be proven on one of five grounds: adultery, unreasonable behaviour, desertion, 2 years of separation or 5 years of separation. The divorce proceedings will need to be brought by one person in order for a divorce to be granted on the grounds of one of the above reasons.

In the case of Owens v Owens, the couple had been married for 39 years and the wife cited her petition for divorce based on her husband’s unreasonable behaviour. She said that his treatment of her, (including scolding her in front of their housekeeper and ignoring her over a meal), amounted to unreasonable behaviour, and therefore grounds for divorce. The wife concluded that this along with other unreasonable behaviour led to her feeling that it was no longer viable for them to cohabit under the same roof.. The judge in this case rejected the wife’s petition; stating that the reasons cited were ‘minor altercations of a kind to be expected in a marriage’. As the husband disagreed and did not accept that the marriage had broken down, the wife  must therefore wait five years.

In March 2017, the Court of Appeal dismissed an appeal from the refusal of His Honour Judge Tolson QC to grant the wife a decree nisi of divorce, even though he had found that the marriage had broken down. His Honour found that the wife had failed to provide sufficient evidence to meet at least one of the aforementioned five requirements.

The main arguments against a no fault divorce approach would cite that making the divorce process easier could damage the sanctity of marriage.

Another argument against a no fault divorce approach is that it is possible that more couples will opt for divorce as a default as soon as difficulties and arguments arise, instead of taking the time to try and save their marriage, and that this could maybe have a negative impact on family breakdown.

The main arguments in favour of a no fault divorce approach includes making it easier for couples to settle the terms of their divorce without getting caught up in the proceedings. If both parties desire a divorce, why should it be in the states power or interest to hold up the process. No fault divorce would be a more administrative process, rather than a Court procedure. If a couple have naturally grown apart, or are separating amicably then there will not be a requirement to lay blame on either person.

A no fault divorce approach may be implement in the future, however we will observe the no fault divorce debate with practical interest.

Miss Sophie-Jade Furber   –   sjf@passmores.com

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