The marriage is over all but in name

July 26, 2018, By

The recent ruling of the Supreme Court highlights the urgent need for divorce law reform in England and Wales.

The effect of the court’s judgement in the case of Owens –v- Owens is that Mrs Owens  must stay married to Mr Owens for the time being despite it being acknowledged by every judge involved in the case that the marriage had come to an end all but in name.

Resolution, an organisation of specialist family lawyers (of which every solicitor in Slater Heelis’ family team is a member), intervened in the case, seeking an urgent change in the law. Resolution has been campaigning for no fault divorce for many years.

The fault-based divorce system in this country necessitates the citing of either unreasonable behaviour or adultery if a spouse wishes to divorce prior to a period of separation of either two years, (if the other spouse consents), or five years (if they do not consent).  In practice, this creates wholly unnecessary conflict at the outset of the divorce process.

This case now sends a message to all practitioners that until there is a change in the law, an unreasonable behaviour petition which cites anodyne terms may not hold up to scrutiny by the court if challenged by the other spouse.   In Mrs Owen’s case the court held, reluctantly, that she had not met a requisite threshold that her husband had behaved in such a way to entitle her to a divorce.

In many of the divorce cases we deal with at Slater Heelis, the particulars contained within the divorce petition are often agreed between the divorcing couple in order to avoid conflict at the start of the case. However, even with an agreement in place it can still leave a bitter taste for the person whose behaviour is being cited.

We now hope that the recent public attention will provide the platform needed to make the much needed law reform for no fault divorce.