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No Fault Divorce

Everything You Need to Know About No Fault Divorce UK Law

No Fault Divorce UK Laws have had a lot of media coverage over the past few months. Here’s everything you need to know about no fault divorce in the UK.

What is a No Fault Divorce?

A no fault divorce basically allows couples to terminate their marriage without casting blame. In other words, it allows couples to split up without the need to prove fault in the breakdown of their marriage.

Current No Divorce UK Laws

At present, this type of divorce is not legally permitted within the UK. Laying out the basic requirements for divorces in Wales and England, the Matrimonial Causes Act (MCA) dating back to 1973 states that only irretrievable breakdown of a marriage is ground for divorce and that such a breakdown is proven by one or more of the following facts:

  • Adultery deemed intolerable to live with by the individual petitioning for divorce (the petitioner)
  • Unreasonable behaviour deemed intolerable to live with by the petitioner
  • 2 years of desertion
  • 2 years of separation with both partners’ consent
  • 5 years of separation without one of the partners’ consent

This means the only reasons allowing couples to divorce within the first 24 months after separating are unreasonable behaviour or adultery, both of which are fault-based facts making it necessary for one spouse (the petitioner) to lay blame for the marriage’s breakdown onto the other (the respondent).

Section 1 (2)(b) of the 1973 MCA states that the petitioner must satisfy the presiding court that their spouse, the respondent, behaved in such a manner that they (the petitioner) cannot reasonably be expected to continue living with them.

The interpretation of this section was the main concern in the Owens Case, a landmark case that made headlines in July 2018.

Owens vs. Owens

So, what happened in this case? After 40 years of marriage, Tini Owens (68) first consulted a solicitor about divorcing her husband Hugh (80) in June 2012. She did, however, not pursue this at the time. She finally left her family home in February 2015 and in May 2015, she filed a petition for divorce on the grounds that her husband’s unreasonable behaviour had caused the irretrievable breakdown of their marriage.

The petition contained, as encouraged by Family Law Protocol, anodyne specifications concerning Mr Owens’ behaviour, with a focus on Mr Owens:

  • Not showing love and affection to his wife
  • Being argumentative and moody
  • Failing to support Mrs Owens in her role as a home maker  
  • Prioritising work over home life

The petition was defended by Mr Owens and following a hearing later that year, Mrs Owens was permitted to amend the petition to further expand on these allegations. Her petition was substantially augmented with 27 unreasonable behaviour examples – only to be dismissed at first instance by the judge, who described it as “flimsy, hopeless and exaggerated”.

This decision was appealed by Mrs Owens. The appeal was, however, rejected by the Court of Appeal. It was rejected on the grounds that it was correctly found at first instance that the marriage was not irretrievably broken down ‘in law’.

Mrs Owens subsequently appealed to the Supreme Court hoping that this would provide an opportunity to find that existing law was too narrowly interpreted, and that a reform was needed, as indeed did many practitioners of family law. All five justices decided, albeit reluctantly in some cases, that this appeal should equally be dismissed, and Mrs Owens was subsequently not granted a divorce.

Considering Section 1 (2)(b), the justices laid out the correct 3-stage approach that should be adopted in the interpretation of this fact, which was to:

  • Determine what, in reference to the petition’s allegations of behaviour, the respondent did/did not do
  • Assess the behaviour’s effect upon the petitioner
  • Evaluate whether, due to the respondent’s behaviour and in view of this behaviour’s effects on the petitioner, any expectation of the petitioner continuing to cohabit with the respondent should be considered unreasonable

It was made clear by the Supreme Court that there is no necessity for the petitioner to demonstrate that the marriage breakdown was caused by the behaviour complained of. In coming to the decision to dismiss the appeal, the judges considered the concepts of conduct based, fault and unreasonable behaviour petitions.

Some of the justices were, however, not comfortable with the decision, and Supreme Court President Lady Hale expressed that she “found this a very troubling case, but it was the judges’ role to interpret and apply law, not change laws laid down by Parliament”.

What Does this Mean Going Forward?

Practitioners and individuals may worry that the decision made in the Owens’ case could result in petitioners increasingly finding it necessary to “firm up” behaviour specifications to avoid any risk of their petitions being rejected. Petitioners citing more exaggerated, inflammatory allegations could cause increased acrimony between parties.

This, of course, is contrary to many family practitioners’ accustomed practice, which is to recommend that petitions should contain examples with sufficient, but anodyne detail to convince a court without inflaming matters and prejudicing amicable solutions.

This approach is also recommended and encouraged by the professional family law body Resolution and the Law Society’s Family Law Protocol. As it is, clients and practitioners are in the increasingly difficult position of trying to ensure allegations meet Section 1 (2)(b) standards while keeping divorce petitions as non-confrontational/non-inflammatory as possible.

Most Supreme Court justices discouraged the concept of petitions being “firmed up”. Until this law is reformed, however, keeping petitions as non-confrontational/hostile as possible while still including enough details to satisfy courts remains a balancing act of great concern.

For Mrs Owens, the Supreme Court’s decision to dismiss her appeal means she must for now remain unhappily married to her husband, although living next door. As both an attempt by Mrs Owens to issue another petition citing different examples of her husband’s behaviour and Mr Owens consenting to a divorce on grounds of a 2-year separation are doubtful, Mrs Owens’ only remaining options is to wait for another two years to divorce her husband.

By that time, they will have lived separately for five years, which means Mrs Owens will finally be able to petition for divorce on grounds of a 5-year separation, which requires neither evidence of fault nor Mr Owens’ consent.  

Out of touch with modern society’s ever-changing social values, these options arguably are not acceptable. Former national Resolution chairman Nigel Shepherd stresses that the Supreme Court’s decision highlights how ‘simply wrong’ it is to expect anyone unable to afford putting their life on hold while waiting two years for a divorce to apportion blame. He further emphasises that asking judges to make a ruling as to who did or didn’t do what is not acceptable within modern society.

Law Reform

Lawyers and judges have long since called for a reform of this law, which has not been changed since the 1973 Matrimonial Causes Act. Following the controversial Owens case, the government announced its intention to reform legal divorce requirements by introducing ‘no fault divorce’.

Opened on the 15th of September 2018, the consultation concerning this reform will close on the 10th of December 2018, with a response to it expected to be published some time around March 2019. Clients and practitioners should watch this space and remain hopeful for a long overdue reform within the foreseeable future.

Rose & Rose

Understanding how difficult relationship breakdowns can be at the best of times, Rose & Rose Kingston divorce lawyers offer initial consultations to assess your specific needs and determine the best route to achieving a successful, amicable outcome for you.

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