No-fault divorce debate
The judgement in the case of Owens v Owens has been handed down, which has decided that the original judge who refused the wife the right to be granted a divorce, was not wrong in coming to his decision.
The appeal of the wife against that decision has today been dismissed by the Court of Appeal which means that she is not able to petition for divorce without the consent of her husband until a period of five years from their separation has elapsed.
The case rested on whether the wife’s allegations of unreasonable behaviour were ‘enough’ to satisfy the test that the marriage had irretrievably broken down. The original trial judge had held that the allegations were merely part of the normal trials and tribulations of a marriage and did not pass the test of ‘unreasonable behaviour’. Today’s decision confirmed that the judge was not wrong in coming to that decision and had applied the law correctly, hence the failed appeal.
Family lawyers across the country are in shock over the decision, with many calling for the law to change regarding fault-based divorce. Earlier in the year Resolution lobbied the government to change the law on fault-based divorces and Resolution’s national chair Nigel Shepherd said today that: “Owens v Owens must be the spark that ignites a fundamental change in our divorce law”
Interestingly, Sir James Munby, the president of the family decision and one of the judges presiding over the appeal said that the procedures which judges must apply and follow were “based on hypocrisy and lack of intellectual honesty” but that “we cannot ignore the clear words of the statute on the basis we dislike the consequence of applying them”.
In reality cases of defended divorces either successful or unsuccessful are rare and I would think that family lawyers in general will continue to try and deter their clients from attempting to defend a divorce, for want of trying to focus on the ‘bigger picture’. The debate about no-fault divorce will continue as it has done for many years but there is a risk that this recent case will persuade more divorcing couples to try and defend their divorce.
Partner and Head of Family Law
Family Law
ARobinson@LawBlacks.com
0113 227 9291
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Ann Robinson
