No fault divorce- is a change to the law needed?
Family practitioners have long since been of the view that divorce law needs to be updated. As many of you know, to show the Court that the marriage has broken down it is necessary to either prove fault, agree a petition on the basis of two years separation, or wait for five years. Lawyers have been pressing for a more straight forward “no fault” divorce, and a recent case has highlighted the need for change.
Mrs Owens applied for a divorce on the basis of her husband’s unreasonable behaviour. Her husband defended the proceedings and the Judge at first instance agreed with the husband, calling her allegations “minor”. She appealed the decision, but although the Judges of the Court of Appeal were sympathetic, they too were of the view that she had not proved her husband’s unreasonable behaviour.
Family practitioners have generally followed the mantra that less is more, when drafting unreasonable behaviour particulars. Why throw the kitchen sink at it, when a few low key allegations will be sufficient? We have been following the general proposition that if one party says that the marriage is over, then it is over.
Short term, that may have to change, if there is a possibility that our clients’ Petitions will not be successful. This would counter the recommendations of both Resolution and the Law Society. It is important for clients to have closure relatively quickly, and to have a platform for the resolution of financial issues, and neither of these would be addressed if a Petition was filed and then refused.
Mrs Owens is now apparently taking the matter to the Supreme Court. Whether she is ultimately successful or not, perhaps the publicity surrounding her unfortunate position may be the impetus needed for change to be made.