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No-fault divorce, the debate continues

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My colleague, John Boon, in his recent blog sought to address the common misconception that it is possible for a married couple or civil partners to divorce or dissolve their civil partnership on the grounds of “irreconcilable differences” i.e. without one party making an allegation of fault against the other. Under the law in England and Wales, unless a party petitions for divorce on the basis of separation, they must rely on allegations of fault against the other.

As to whether there should be a system where blame does not have to be the basis for a divorce, if petitioning on the basis of any fact other than separation, remains a hot topic and it has been lobbied for reform. The issue has recently been put to the government again to establish whether there are any plans to review the fault-based divorce system and, in response, the Justice Minister and House of Lords spokesperson, Lord Keen of Elie stated that “whilst we have no current plans to change the existing law on divorce, we are considering what further reforms to the family justice system may be needed.”

The above has been further considered in the recent case of Owens v Owens, where Mrs Owens appealed the decision of His Honour Judge Tolson QC not to grant Mrs Owens a divorce from her husband on the ground that the marriage has broken down irretrievably by reason of her husband’s unreasonable behaviour.  Mr and Mrs Owens had been married for 39 years before Mrs Owens petitioned for divorce based on Mr Owens’ unreasonable behaviour. Mr Owens denied the allegations and disputed that the marriage had broken down. Mrs Owens had sought to rely on no fewer than 27 allegations regarding Mr Owens’ unreasonable behaviour in support of her Petition for Divorce, but these were deemed to be insufficient. These allegations, which included that Mr Owens was “insensitive in his manner and tone” were deemed to be “exaggerated” and of a kind “to be expected in a marriage” and therefore did not satisfy the fact of unreasonable behaviour. Sir James Munby, President of the Family Division, hearing the appeal said “it is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be.” The Court of Appeal has reserved its judgment.

The question remains whether the law will change, but for the time being, unless parties petition on the basis of separation, fault will remain the basis of any divorce or dissolution of a civil partnership in England and Wales.

If you are contemplating divorce or dissolution proceedings, it is important that you seek legal advice to ensure you know where you stand. Here at Roythornes, the members of our specialist family law team will be able to advise you on dealing with the breakdown of a marriage or civil partnership.  The family law team regularly deals with cases across the East Midlands, East Anglia, Kent and beyond. We have a national client base. The family law team is happy to accommodate a meeting at any of Roythornes four offices in Spalding, Peterborough, Nottingham or Newmarket, by telephone, or by Skype/video conferencing.   

Please do not hesitate to contact a member of the family law team by telephone – 01775 842500 – to discuss matters.  Alternatively, please send an email to nickingrey@roythornes.co.uk.