The question of whether or not ‘no fault divorce’ should be introduced is capturing the interest of many. This is particularly the case since the well-publicised case of Mrs Owens, who in 2017 petitioned her husband for a divorce on the basis of his unreasonable behaviour. The court refused her a divorce, stating that the behaviours were just examples of ‘minor altercations of the kind to be expected in a marriage’.
The only ground for divorce is that a marriage has broken down irretrievably, which can then be proved in various ways. For now, the only option to divorce without blame is for couples to wait two years and then divorce by mutual consent on the basis that they have been separated and living apart. For many people, waiting two years to sort out and finalise their finances rules this option out. If a divorce without delay is preferred, then the fault-based reasons of adultery or unreasonable behaviour must be relied on and the finger pointed at the other spouse. Unreasonable behaviour has consistently been the most common ground for those petitioning for divorce for more than 40 years.
The case of Owens has caused momentum in people seeking substantive legal reform, towards a system that is more reflective of modern society and promotes a more constructive way forward for separating couples. Whilst a no fault divorce system has been adopted by some countries, such as the United States, China and Sweden, it is yet to be embraced by England and Wales.
The need for blame in divorce is attracting much criticism. Many people argue that it is for people to decide themselves whether their marriage is at an end, rather than the court. They say that the fault-based grounds ignore the reality of couples who may have naturally grown apart or fallen out of love. It is argued that introducing no fault divorces could help reduce some of the stress and pain that couples endure when separating. However, there are also concerns that if divorce were made too easy, this could lead to a surge in separating couples who might all too quickly decide to divorce rather than attempt to save their relationship.
The case of Owens is an unusual one. It is more commonly the case that a properly drafted unreasonable behaviour petition will be granted by the court without difficulty. The courts are getting better at recognising the numerous reasons for people wanting to divorce and understanding that behaviour considered trivial or acceptable in one marriage might be seen as wholly unreasonable in another. In practice, many behaviour petitions are often based and granted on very mild allegations. A draft divorce petition, where appropriate, ought to be agreed by the couple before being submitted to the court in order to try and reduce any disagreement about its contents. With the benefit of legal advice and assistance in starting divorce proceedings, there should be no reason for the court to reject a divorce petition or to prevent amicable relations continuing.
We can advise on all types of family relationships, whether in relation to divorce, dissolution of a civil partnership or separation. There may also be other things, such as finances and children, to consider when dealing with the breakdown of a relationship.