The Court of Appeal upheld a ruling in the lower court dismissing Mrs Owens’ divorce petition based on her husband’s unreasonable behaviour. In the original judgment the behaviour alleged was deemed to be insufficient to prove that the marriage had broken down irretrievably, the judge saying that the allegations were “of the kind to be expected in marriage”.
The result is that the parties will have to remain married until they have been living separate and apart for 5 years. Mrs Owens, who described the marriage as “loveless and desperately unhappy”, will not be able to seek a final financial settlement until there is divorce petition before the court.
For family lawyers the decision is a real worry; it harks back to cases reminiscent of Victorian times. These days, when drafting divorce petitions we attempt to keep the details of the other party’s behaviour to a minimum to avoid adding to hostilities at an already difficult time. If we now have to go into great detail about what the other party has allegedly done to cause the breakdown of the marriage, the divorce process could become a mud-slinging exercise at a time when the courts are already overstretched. The result will be more delay, more cost and an increase in hostilities.
The solution would be the introduction of ‘no fault’ divorce, akin to laws already in place in many other legal jurisdictions. In Scotland, for example, the parties only have to be separated for one year to obtain a divorce by agreement, or two years if one party objects.
Indeed, the Family Lawyers Association Resolution has been advocating no fault divorce for a long time and backed an unsuccessful attempt by MP Richard Bacon in 2015 to introduce a change in the law.
The appeal court judges were asked by Mrs Owens to overturn the dismissal of the divorce petition. Their hands were tied as an appeal can only succeed if the judge hearing the original case had got the law wrong. The appeal judges could not interfere with the original decision but President of the Family Division Sir James Munby stated: “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people say it should be.”
Another of the three judges, Lady Justice Hallett, commented: “It is for Parliament to decide whether to amend [the law] and to introduce ‘no fault’ divorce on demand; it is not for the judges to usurp their function”.
Whilst Mrs Owens is undoubtedly reeling from the Court of Appeal decision, we can only hope that the widespread reporting of this case brings the issue of no fault divorce into the public domain and pressure is exerted on politicians to change the law which is outdated and unfit for purpose.
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