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Will Headline Grabbing Case Bring No Fault Divorce Closer?
- AuthorAndrew Evans
Nobody enters into marriage lightly, but the ongoing case of Owens Vs Owens is likely to give even the most starry-eyed couples pause for thought. This case sees a woman who wants to divorce her husband of 40 years unable to do so, despite the fact that the pair have lived separate lives for some time.
The latest twist in this case sees the Supreme Court dismiss ‘with reluctance’ the wife’s appeal, on the basis that she failed to prove that the marriage had broken down irretrievably. Inevitably, this ruling has amplified calls within the family law community for the introduction of a no-fault divorce, to better reflect the realities of modern life.
The Owens separated in 2015, with Mrs Owens petitioning for divorce on the grounds that that their marriage had irretrievably broken down and that she could not reasonably be expected to live with her husband because of the unreasonable behavior she cited, under the Matrimonial Causes Act 1973.
Mr Owens contested this application and the judge ruled that the wife’s allegations of unreasonable behaviour weren’t very robust. The wife’s case was then dismissed in the Court of Appeal which applied the law correctly as it stood but acknowledged that there was an argument that the law no longer reflected modern day relationships and that no fault divorce was called for. The Supreme Court once again applied the law but admitted to ‘uneasy feelings’ about the ruling.
According to law, Mrs Owens does have options, though they involve yet more drawn out wranglings. If she wishes to proceed with the marital split she must wait another two years before she can restart the divorce process, then petition on the basis that she and her husband have been separated for five years. By that point Mrs Owens will no longer need her husband’s consent in order to secure the divorce.
Of course this case is a cautionary tale for some couples who fear they will face obstruction from their partners if they try to initiate divorce proceedings. Family lawyers are also alarmed by this case since much progress has been made within the legal community to encourage separating couples to act respectfully towards each other during the divorce process, whenever possible. This case, clearly, turns that heat back up and creates a more combative atmosphere since it may encourage a spouse who is seeking divorce to exaggerate grounds in order to ensure the ‘success’ of their petition.
While this case is a sad one for all involved it does serve to throw the spotlight on an important issue faced by many couples throughout England and Wales and it may be that The Government may be prompted to re-evaluate whether it is appropriate for one party to have to prove blame within a marriage, as the law requires them to do, in order to divorce. Until they are able to do so, seeking advice from your chosen legal advisor in relation to your proposed grounds for divorce will remain even more important.
Andrew Evans is an Associate Solicitor at JCP Solicitors. Andrew has significant experience of all areas of family law including Divorce & Civil Partnership dissolution, children matters including removal from the jurisdiction matters before the high court, financial relief, Domestic Violence issues (including injunctions), and disputes between separating non-married couples.
For more information please call Andrew on 01443 490884 or email email@example.com
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The question posed is based upon a hypothetical situation.