The availability of Divorce – What does the future hold?

PUBLISHED 11.04.17

At present, anyone who has been married for over a year can initiate divorce proceedings, provided one party to the marriage is either domiciled in England or Wales or has been resident in England or Wales during the preceding year. The law of England and Wales further states that to obtain a divorce, the person seeking a divorce must prove one of five facts to evidence that the marriage has irretrievably broken down. These five facts are:-

    1. Your spouse has committed adultery and you find it intolerable to continue living together.
    2. Your spouse has behaved in such a way that it would be unreasonable to expect you to continue living together.
    3. Your spouse has deserted you for a continuous period of 2 years or more.
    4. You and your spouse have been living separately for 2 years or more and your spouse agrees to the divorce.
    5. You and your spouse have been living separately for 5 years or more, whether or not your spouse consents to the divorce.

As can be seen, three of the five facts require you and your spouse to have been separated or apart for a period of two years or more, therefore, if you wish to proceed with a divorce sooner than this, the only two options are where your spouse has committed adultery or has behaved unreasonably during the marriage.

To proceed with a divorce on the basis of your spouse’s adultery, you are required to prove that adultery has taken place and the only way of doing so is by your spouse admitting the adultery, which often they will refuse to do. For this reason, divorce Petitions on the basis of unreasonable behaviour are frequently the fall-back position for someone seeking a divorce.

Most family lawyers are part of a membership called ‘Resolution’. Resolution members follow a Code of Practice that promotes a constructive approach to family issues and considers the needs of the whole family, in particular the best interests of children. In line with the Resolution Code of Practice, family practitioners will often advise client’s that the content of a Petition based on a spouse’s unreasonable behaviour should be mild to avoid fracturing the relationship further, instead providing just enough emphasis to meet the threshold for the Judge to consider the marriage has irretrievably broken down.

Tina Owens -v- Hugh Owens

In a recent case, Mrs Owens sought a divorce from her husband of 40 years, citing her husband’s unreasonable behaviour as evidence to the fact the marriage had irretrievably broken down. Mr Owens defended the Divorce on the basis that the allegations made did not prove the marriage had irretrievably broken down and at the hearing listed for 14th February 2017 he told the Judge he believed they still had a few good years left to enjoy.

Upon considering the cases made by each of them, Judge Tolson refused Mrs Owens Petition for a Divorce, finding that the behaviour allegations cited had not been proved and were nothing more than normal behaviour during the course of a marriage. Mrs Owens made an Application to Appeal the decision and the three Appeal Judges dismissed her appeal.  In simple terms what this means is that in consideration of the law, unless Mr Owens goes on to commit and admit adultery, or agrees to a divorce upon two years separation, Mrs Owens will not be able to Petition for a Divorce until she  has  been separated for a period of five years or more, when she no longer requires his consent.

So, with consideration to the outcome of this case and the contents of the Resolution Code of Conduct, what does this mean for the future of Divorce and in particular, divorce on the basis of a spouse’s unreasonable behaviour?

The ruling on Owens has sparked national debate within our industry, regarding the need for the law of England and Wales to adapt to modern society and introduce a ‘no fault’ divorce option. It appears to be generally agreed that there is little or no benefit, in most, but not all cases, to force someone to remain married if they do not wish to be. That being said, for this to become law it needs to be considered and passed by Parliament and therefore for the foreseeable future, one of the five facts as outlined must be proven.

The family team at Dunn & Baker are specialists in achieving divorces and will always adopt a realistic and effective approach when advising our clients as to the best way in which to achieve a divorce.

Kindly contact our family team on 01392 285000 for more information if you are considering taking this step.

 

Darren Cleverdon                   Laura Sellick-Tague                 Natasha Johns                        Rebecca Wilson