Divorce Laws- Are they fit for the 21st Century?
10 November 2017 by Kate Crossman
A blog written by Kate Crossman and Jharna Kumawat.
Many leading lawyers believe that the current law for divorce which derives from The Matrimonial Causes Act 1973 is outdated and gets in the way of constructive solutions. At the moment, there is no provision for a ‘no-fault’ divorce in England and Wales, but this is available elsewhere in the world such as Canada and Australia. The only ground for divorce is that the marriage has irretrievably broken down. This can be proved in a number of different ways but it is not possible for a couple to get a divorce without blame unless they have been separated for at least two years. Anyone not wanting to wait two years or more for a divorce has to prove ‘unreasonable behaviour’ or adultery on the part of the other. Although this may be appropriate for some, for others it can lead to increased conflict between the parties, and leave them feeling as though they have to lay blame with each other in order to satisfy the Courts that they can divorce.
Most recently, following the rare case of Owens v Owens, the divorce laws are yet again subject to criticism. Hugh Owens is 79 years old and has been married since 1979 to Tini Owens who is 67 years old. They separated in October 2015 and Mrs Owens filed for divorce shortly after. Mrs Owens asked the court to find that the marriage had irretrievably broken down, as Mr Owens ‘had behaved in such a way that [she] cannot reasonably be expected to live with him’. Mr Owens’ Counsel says that his behaviour, bad though it may be, is not unreasonable in the context of the legal test for Mrs Owens to be granted a divorce.
In January 2016, HH Judge Tolson QC considered some 27 examples of misconduct set out by Mrs Owens. He decided that these were ‘minor altercations of a kind to be expected in a marriage’. Reflecting on cases decided since the Matrimonial Causes Act 1973, he decided that Mrs Owens could not be granted her divorce as she did not pass the legal test The Court of Appeal agreed. Mrs Owens has been granted permission to appeal to the Supreme Court against the decision of the Court of Appeal in her much-publicised defended divorce suit.
Resolution (the family lawyers’ association) have been running a campaign for ‘no-fault’ divorce and have asked for permission to intervene when the Supreme Court considers the Owens case.
If the divorce petition is not carefully drafted it can result in a refusal of permission for divorce.
If you would like advice regarding a divorce, please contact our family department – [email protected]
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