The arguments regarding no-fault divorce have been rehearsed and explored for decades and will finally result in the introduction of a no-fault system into England and Wales law in April 2022.
The case for a no-fault approach was bolstered over the years by a number of high profile divorce cases which illustrated the potential for long drawn out, contentious and costly divorce cases.
A prime example of this was the case of Owens vs Owens. The couple, now in their 80s and 70s respectively, married in 1978 and had two children. As the marriage developed problems, Mrs. Owens initially consulted her solicitor about divorce in June 2012. In February 2015 Mrs. Owens moved out of the marital home.
The only ground for divorce under the current law is that there has been an irretrievable breakdown of the marriage. This needs to be proven using one of five facts. Mrs. Owens argued that Mr. Owens had behaved in an unreasonable manner and, as a result, she cannot be expected to live with him. Crucially, however, Mrs. Owens was unable to provide examples of the unreasonable behaviour Mr. Owens was alleged to have exhibited. Due to this omission, the court refused to grant a divorce.
As well as the unreasonable behaviour, two years of separation with consent can in effect produce a ‘no-fault’ outcome under the current system. To achieve this end, however, both parties must consent, and in the case of Owens vs Owens, Mr. Owens did not consent. Therefore, Mrs. Owens would need to wait 5 years from their separation before they could be divorced without the consent of her husband.
The Court Judgement
The trial judge and the judges at appeal found that the examples of unreasonable behaviour which were provided by Mrs. Owens amounted to “minor altercations of the kind to be expected in marriage.” In effect, this meant that the courts have interpreted the current law to suggest that the spouse’s behaviour will need to meet a certain threshold prior to the petitioner being entitled to a divorce.
This judgement shone a spotlight on some of the problems and inconsistencies of the current approach. In this case, Mr. Owens was able to withhold his consent to divorce despite what Mrs. Owens viewed as the irretrievable breakdown of the relationship. The current system then places the onus on making a judgement about the relationship to the courts, rather than belonging to the couple itself. However, the counter-argument may be that Mr. Owens felt that being blamed for the relationship breakdown was unfair and didn’t reflect the day-to-day reality of the marriage.
A No-fault Approach
Under a no-fault approach, Mrs. Owens would have petitioned for a divorce, which would then be followed by a 20-week waiting period. During that time the couple would be encouraged to reach agreements about the division of assets. With no means to prevent the divorce from being granted, both parties would have an onus to reach an amicable decision.
While no divorce system will be perfect, the new approach aims to reduce the potential for conflict. In effect, it removes the courts from deciding upon the details and quality of a couple’s relationship and will make cases such as that between Mr. and Mrs. Owens a thing of the past