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The current law provides that a couple can divorce if there has been an ‘irretrievable breakdown’ of their marriage. In accordance with section 1(2) of the Matrimonial Causes Act 1973, the court will not hold the marriage to have broken down irretrievably unless the petitioner can satisfy the court of one or more of the following facts:

(a)that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d)that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;

(e)that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).

The current law has made it difficult for couples to divorce if their marriage has broken down, but not in accordance with one of the five facts mentioned above. A notable case with such difficulties is the case of Owens v Owens, whereby Mrs Owens sought a divorce from her husband on the basis that she felt unhappy, unloved and unappreciated.

It was determined by the court that this did not amount to an irretrievable breakdown of the marriage and that “the wife has exaggerated the context and seriousness of the allegations to a significant extent and that they are all at most minor altercations of a kind to be expected in a marriage”.

Mrs Owens took the case to the Court of Appeal, however the original ruling was upheld and it was stated that the law was correctly applied and in law there had not been an irretrievable breakdown of the marriage. However, notably, Lord Wilson remarked that “Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances”.

This has lead to wide discussion that the law on divorce is outdated and that it is time for no fault divorce. It has been reported that Justice Secretary David Gauke plans to announce a consultation on no-fault divorce, which will call for the existing fault-based system of establishing the breakdown of a marriage to be ended. If the government’s proposals are accepted, this will provide for a single ground of divorce, which would be irretrievable breakdown, therefore simplifying the current law and preventing the difficulties of divorce in future cases.

Alice Zagradski (Paralegal)

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