Is it time for No Fault Divorce? - Goodman Ray

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Late last month Resolution – a family law practitioners group – met for their annual conference in Bristol. Resolution operates a code of practice which its members (including many of our solicitors here) subscribe to which promotes dealing with matters in a sensible, constructive and non-confrontational way. The conference saw a re-surface of Resolution’s No Fault Divorce campaign which seeks to change the current framework for divorce in England and Wales, which some say is in desperate need of reform.

The current legal framework for divorce in England and Wales is fault based. This means that in order for a spouse or civil partner to petition for a divorce they must satisfy one of five facts, namely:

1. Adultery;
2. Unreasonable behaviour;
3. 2 years separation with consent;
4. 5 years separation without consent; or
5. Desertion.

Further, a petition can only be issued 1 year after the parties’ marriage.

Other jurisdictions such as America and Spain allow spouses and civil partners to divorce without one attributing blame to the other. The system in England and Wales, which is over 50 years old, is often considered to be out of touch with modern day concepts of marriage. It is also thought to make matters more litigious and aggressive, especially where there are other proceedings related to the divorce such as financial proceedings or proceedings in respect of the children of the marriage.

Resolution argues that by removing the blame element “the divorce process will increase the chances of successful non-court dispute resolution, in turn reducing the burden of the family court.”*

This assertion is backed up by research undertaken by the Nuffield Trust, who found that;

• The cost of defending a divorce (i.e. where a spouse/civil partner seeks to challenge the grounds of the petition – such as in Owens v Owens (see below)) has an adverse impact on family finances as the money that it used to fund the proceedings is taken from “the family pot”; and

• There is a strong likelihood of contested divorces increasing parental conflict, which has an adverse impact on children.

Even further, Nuffield Trust’s previous report into divorce law worryingly showed that there had been concerns of petitioners exaggerating the particulars of unreasonable behaviour in an effort to fast –track their divorce.

Whilst the Government has yet to introduce an enquiry into the need for reform it is hoped that the case of Owens v Owens will highlight the need for change.

The case concerns a wife who petitioned for a divorce on the fact of unreasonable behaviour. The husband contested the divorce on the grounds that the particulars alleged by the wife did not meet the required threshold. The Court of first instance (the High Court) sided with the husband and the wife appealed to the Court of Appeal, who in turn upheld the High Court’s decision on the basis that they had applied the law correctly. The wife applied for permission to appeal to the Supreme Court and which was granted. An oral hearing is expected to take place before the Supreme Court later this year.

It can only be hoped that with the vast media attention that the Owens case has attracted and the mounting pressure from professional organisations will pave way for a more neutral and amicable legal framework which will reflect the needs of today’s society.

A further article will be posted together with a link to the Supreme Court’s judgment once available.

Tom Trim

(Trainee Solicitor)



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