On the 17th May 2018 the Supreme Court is hearing the case of Owens v Owens. This controversial case is an appeal by the wife, Mrs Owens, whose divorce petition was rejected on the basis that the examples of her husband’s that she gave to form the basis of her divorce were not sufficient for her to be granted a divorce. This has reinvigorated the debate as to whether, in this day and age, there needs to be a party at fault.
In many countries, including Australia, the United States and Spain, no fault element is required to obtain a divorce. In England and Wales, the only facts for divorce available immediately on separation require one party to be blamed – either due to their adultery or their behaviour. If neither of those facts can be established then they have to wait to be separated for more than 2 years which is the closest we have to a ‘no fault’ divorce in England and Wales, however this still requires the consent of the other party. If no consent and no “fault” then they are required to wait until they have been separated for 5 years to issue a divorce. There is a divorce available on the fact of desertion but again this requires a period of time and is rarely available or used.
Most people accept that the breakdown of a relationship is rarely, if ever, the fault of one party so the idea of basing a divorce petition on just one of the parties’ ‘unreasonable behaviour’ can add an element of artificiality to the whole process. It is often the case, in amicable separations, that parties will agree on the particulars of behaviour that are cited so as to prevent the process becoming hostile but still enable them to proceed with a divorce but in some cases, people just cannot accept, or face, a petition based on just one party being “blamed” and this means that they have to remain married until they can use an alternate fact.
The other issue with the requirement of listing someone’s adultery or unreasonable behaviour, is it involves the Court making a value judgment about the behaviour cited. This can be seen in the case of Owens where the Court have essentially ruled that Mrs Owens must stay married, despite her desire for a divorce, because her husband’s behaviour isn’t ‘unreasonable’ enough to justify ending the marriage. The inclusion of a fault element in the process means that one of the most private and personal parts of someone’s life, i.e. their marriage and the behaviour within it, has to be examined by the Court. This overly paternalistic approach is surely out of place in the 21st Century, particularly as there are now many different types of relationship and what one person views as unreasonable may be another person’s normal.
Over recent years family lawyers and in particular Resolution members (a group of over 6,000 family lawyers committed to assisting clients resolve matters in the most amicable way possible for the parties) have been at pains to try and assist in reducing conflict between parties divorcing and petitions based on behaviour have been drafted with this in mind. The decision in Owens has meant a reversal in that trend for fear that a petition would be considered “insufficient” leading undoubtedly to increasing hostility between the couples where one party has been faced with a behaviour petition.
Proponents of the view that the fault element should be retained in our divorce process, suggest that the ‘sanctity of marriage’ is protected if it is harder to end the marriage but does removing the fault element in divorce mean that people will start marrying and divorcing more frequently? Regardless of legal status, the widely held social view of marriage is clearly that it is not something that should be entered into or ended lightly, a change in the law is unlikely to alter this. Furthermore, there is no evidence to suggest that the divorce rates in countries where a fault element is not required are noticeably higher than those where a fault element is. It arguably makes more of a mockery of the institution of marriage to force two people who don’t want to be married to remain so or a system which effectively forces people to place blame on one party which could be far from the true reason for the marriage breakdown.
As a result of this, Resolution, a group of over 6,000 family lawyers, have proposed a new procedure where one or both of the parties can give notice that the marriage has broken down irretrievably. The divorce proceeds and, if one or both of the parties still think that the marriage has broken down irretrievably 6 months after the initial notice then the divorce will be finalised. Resolution have been given permission to intervene in the case of Owens and Owens and the outcome of this case is highly anticipated.