Law Articles

The elusive “no fault divorce” 28/04/2017

Over 200,000 people get divorced each year. The current law on divorce is contained in the Matrimonial Causes Act 1973 (MCA 1973), which is over 40 years old, and there is no sign of it being updated by the Government any time soon.

The MCA 1973 sets out five facts for divorce: adultery; unreasonable behaviour; desertion; 2 year separation and 5 year separation. Official statistics show that "adultery" and "unreasonable behaviour" are most commonly relied on. Most family law solicitors encourage their clients to file divorce petitions to include only brief details of their spouse's 'behaviour' so as to avoid unnecessary conflict and upset. Most divorces are concluded without any complications and very few are defended.

The media recently reported a very rare case (Owens v Owens) of a defended divorce reaching the Court of Appeal in which the Judges refused to grant a divorce based on the husband's alleged unreasonable behaviour. Mrs Owens was aged 66 and Mr Owens 78. The parties married in January 1978 and had two adult children. It was agreed by the parties that there had been a separation in February 2015 when Mrs Owens vacated the family home and moved into rented accommodation. On 6 May 2015 she filed a divorce petition based on her husband's alleged unreasonable behaviour. On 16 July 2015 Mr Owens filed an acknowledgement of service indicating an intention to defend. As a result, Mrs Owens amended her petition to give further and more detailed particulars, and Mr Owens in turn filed an amended answer. At first instance the court concluded that 'the wife has exaggerated the context and seriousness of the allegations to a significant event. They are all at most minor altercations of a kind to be expected in a marriage. Some are not even that.' In dismissing the petition, the Judge stated, 'I find no behaviour such that the wife cannot reasonably be expected to live with the husband.' Mrs Owens appealed the decision to the Court of Appeal. The appeal Judges stated that the correct test to apply is the mixed subjective-objective test as set out in the case of Ash v Ash (1972) and Livingston-Stallard v Livingstone-Stallard (1974) namely, 'would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him; taking into account the whole of the circumstances and the characters and personalities of the parties?'. Applying that test, the Judges dismissed Mrs Owens' appeal. Consequently, she remains married to Mr Owens. The outcome may have been 'correct' as a matter of law, but many would suggest that the law needs to change.

The issue of a 'no fault divorce' is not new. Resolution and many other groups have been calling for a no fault divorce for many years without success. The Court of Appeal decision in Owen v Owen has reminded us all that the law on divorce is as found in s.1 of the Matrimonial Causes Act (1973) and that it is an issue for the Government to deal with. So, will there be legislative change? Last month the Government confirmed it had no current plans to change existing legislation. Justice Minister Lord Keen of Elie said 'the Government was committed to improving the family justice system so that separating couples can achieve the best possible outcomes for themselves and their families'. He added: 'whilst we have no current plans to change the existing law on divorce, we are considering what further reforms to the family justice system may be needed.'

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.