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Service Areas: Divorce/Civil Partnership and Separation, Family, Relationship Agreements, Children Matters

Divorce and unreasonable behaviour - Time to change the law

Emma Alfieri
(Associate)

In order to apply for a divorce in England and Wales, there is only one ground, and that is irretrievable breakdown of the marriage.


The court cannot confirm that the marriage has irretrievably broken down, unless the person applying (the petitioner) satisfies the Court in one or more of five facts being:

  1. The spouse has committed adultery with another person of the opposite sex;
  2. The spouse has behaved in such a way that the petitioner cannot reasonably be expected to live with them;
  3. The spouse has deserted the petitioner for a continuous period of at least two years;
  4. The parties have lived apart for a period of at least two years and the parties agree to a divorce;
  5. The parties have lived apart for a period of more than five years.

Often couples believe that they can simply file for divorce on the basis of their agreement; however, this is not the case.  Divorce law dates back to 1973, which subsequently causes the above facts to be outdated.

Resolution, a national organisation of family lawyers, has for some time been campaigning for a change in legislation, to bring about ‘fault free divorce.’

A recent case has catapulted this subject  into the news, following the case of Mr and Mrs Owens.  Mrs Owens petitioned for a divorce from her husband of 37 years in 2015, on the basis of Mr Owens’ unreasonable behaviour.  The parties had married in 1978 and Mrs Owens  moved out of their family home in February 2015.  Mr Owens defended the divorce and the Court listed a trial in January 2016.  The Judge who heard the case refused to grant Mrs Owens a divorce and dismissed her petition. It was found that Mrs Owens could not go on living with her husband, but the facts relied on by her were “minor altercations of a kind to be expected in a marriage”.

Therefore Mrs Owens appealed. The Court of Appeal upheld the Judgment with the President of the Family Division, stating the court could not interfere. “Parliament has decreed that is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people say it should be”. 

Recently, Mrs Owens has been granted commission to appeal to the Supreme Court against the decision. She will argue that the Court’s emphasis on trying to find that a Respondent’s behaviour is in some way unreasonable, is wrong.  It will be argued that this is a “linguistic trap” and that the statue does not require unreasonable behaviour, but simply behaviour such that the Petitioner cannot reasonably be expected to live with the Respondent. 

Steeles Law family team are in full support of fault free divorce.  Emma Alfieri joined in with a parliamentary ‘fault free divorce’ campaign last year to raise awareness. Emma Alfieri firstly stated that “this case further highlights our outdated divorce law in this country."  She then went onto comment “Clearly Mr & Mrs Owens are not going to reconcile and cannot live together, however the law is so old fashioned, that Mrs Owens has been prevented from obtaining a divorce”. “Since 1973 when the current divorce law came in force, the outlook has changed in regard to marriage and relationships, and what is now socially acceptable is different. Therefore, to be bound to this old fashioned approach to divorce can be frustrating, as it only results in animosity, where couples are often forced apportion blame upon the other”.

The family team continue to support Resolution’s campaign for change in the law in order to provide modernisation.

 

Published: 9 August 2017
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