An opinion is emerging both in the media and across many in the legal profession of England and Wales that the present legal system for divorce, that actively encourages conflict and archaic notions of blame, should be abandoned imminently.
Presently, a party seeking divorce (also known as a Petitioner) must satisfy the Court that their marriage has broken down irretrievably by stating one of the following 5 facts:
- Unreasonable Behaviour;
- 2 years separation with consent; or
- 5 years separation with no consent required.
Research shows that nearly half of all divorces are now based on “unreasonable behaviour” and various examples of this must be cited to demonstrate that a marriage has irretrievably broken down.
Many legal practitioners advocate using deliberately mild examples of a respondent’s behaviour in the divorce petition but more often than not the exercise is seized as a mud- throwing opportunity where one spouse attributes fault to the other and so begins a “bidding war” of resentment and anger between the divorcing couple, the National Family Mediation (NFM) says.
In the recent Court of Appeal case of Owens v Owens  EWCA Civ 182, although Lady Justice Hallet commented that she had reached her conclusion “with no enthusiasm whatsoever”, the three appeal judges dismissed the wife’s appeal to allow her to divorce her husband on the basis that the allegations about her husband were “insufficient” to amount to unreasonable behaviour.
Mrs Owens’ divorce petition stated incidents of Mr Owens’ so-called “unreasonable behaviour” such as criticising her in front of the housekeeper; making her pick up bits of cardboard in the garden; a row in an airport shop after a holiday; and “a silent meal in a local pub”.
The Court of Appeal upheld that these allegations were minor altercations of a kind to be expected in any marriage and, therefore, were not serious enough to warrant a divorce being permitted. As a result of the appeal judges’ decision and her husband’s refusal to consent to the break-up, Mrs Owens is now left trapped in a “loveless and desperately unhappy” marriage for 5 years.
The unfortunate reality is that if Mrs Owens had ramped up the allegations, been prepared to lay significant blame to her husband and manipulated the system, which would arguably have been nothing more than a charade, she may well have been given the green light by the courts to proceed with a divorce.
In the wake of the unusual (and some may say unfair) ruling in Owens last month, the united voice of the legal profession has been growing increasingly louder for the immediate need for law reform and the introduction of a long-overdue modern system of “no-fault divorce” that allows people to exit an unhappy marriage without having to wait for 2 years which requires the other parties’ consent or, worse still, 5 years.
Countries such as the USA and the Netherlands permit couples to divorce without allocating blame. So too does our closest jurisdictional neighbour, Scotland.
Research carried out by Professor Liz Trinder of the University of Exeter, who is leading a study which is funded by the Nuffield Foundation, purports to show that present divorce laws are needlessly painful, exacerbating bitterness and conflict between couples. “Spouses feel they have no alternative but to give inaccurate accounts of how their marriage broke down, stretching the truth to meet legal requirements.”
Despite the increasing evidence of the destructive nature of the current divorce requirements, not everyone is in favour of reform. Those who oppose a liberal shake-up of divorce laws argue that the institution of marriage should be preserved and supported. Their argument is that there is a significant risk of the divorce rate spiking and the traditional family model breaking down if it is perceived to be easier to get a divorce.
Clearly it is time that the legal process and the courts recognise that we operate in a modern society and that the Matrimonial Causes Act 1973 is fundamentally incompatible with the requirements and reality of life in the 21st Century.
Our present legal system in England and Wales relies on couples actively blaming one another for the demise of their relationship and then in the same breath expects them to sort out the division of assets and work together as parents to put their children first. It would be more conducive to eliminate the focus on who is to blame for the split and to have a law that helps couples to look forward rather than backwards.
In the words of the former Family High Court judge, Sir Paul Coleridge: “…it is time for government and parliament to stop dithering and confront this issue which was fully reformed and then shelved more than 20 years ago. All aspects of the law relating to our domestic relationships deserve proper and full review and reform now. There is no excuse for further delay when this area of law affects us all.”
This article was written by Anna Crayton, Trainee Solicitor within the Matrimonial Team led by Sofia Moussaoui.
For more information on this or on any family law issues the matrimonial team can be contacted on 020 7408 8888 or firstname.lastname@example.org.