Do I have to blame my spouse to obtain a divorce?

Does someone need to be at ‘fault’ to obtain a divorce?

Should we have no fault divorce so that unreasonable behaviour is not a factor

This article examines the ‘unreasonable behaviour’ hurdle required to obtain a divorce, and considers the need for “no fault” divorce following the Court of Appeal’s decision in Owens v Owens [2017] EWCA Civ 182.

Over the last 6 months there has been significant press coverage in respect of Tini Owens; a 66 year old individual who has been refused a divorce from her husband. The area of “no fault” divorce was also highlighted in a recent Tonight program on ITV.

Mrs Owens initially petitioned for divorce in May 2015 on the fact of her husband’s unreasonable behaviour towards her. Unreasonable behaviour is one of five grounds for divorce; the other four grounds being:

  1. Two years separation by consent;
  2. Five years separation;
  3. The other party’s Adultery; and
  4. Desertion.

Mrs Owens claimed that her relationship with her husband had broken down after she had had an affair several years ago. Her husband subsequently defended the divorce which led to the parties having to attend a formal Court hearing.

Before the hearing Mrs Owens amended her divorce petition and added a number of further allegations against her husband to support her argument of unreasonable behaviour. She cited 27 reasons in total, including allegations that her husband had ‘prioritised his work life over home life’, ‘spoke to her in an undermining manner’ and ‘failed to show her love, attention or affection’. At the initial hearing the Judge held that Mrs Owens had failed to prove that her husband had behaved in such a way that she could not reasonably be expected to live with him. Instead, he found that Mrs Owens’ examples of her husband’s unreasonable behaviour were nothing more than ‘minor altercations of a kind to be expected in a marriage’.

Mrs Owens appealed the Judge’s decision and the matter appeared before the Court of Appeal in March 2017. The Court of Appeal, however, agreed with the initial Judge’s decision and refused to overturn the decision or grant Decree Nisi.

In August 2017 Mrs Owens was granted permission to take the matter to the Supreme Court, which she did. The parties are now awaiting a Supreme Court hearing date.

If Mrs Owens loses her appeal before the Supreme Court, she will have to wait two years before she can divorce her husband on the basis of five years separation. This will almost certainly strengthen calls for the Government to introduce “no fault” divorce.

Interestingly, if Mrs Owens’ husband had not defended the divorce, the divorce would have probably gone through without any challenge by the Court. As such, it is advisable in most scenarios to agree the reasons for ‘unreasonable behaviour’ with your spouse before issuing the divorce petition at Court (although undoubtedly this would not have made a difference in Mrs Owens’ case as her husband does not wish to be divorced from her).

At Hunt & Coombs our expert Family Solicitors can assist in drafting divorce petitions and advise you of your options if you fear your spouse is likely to defend a divorce petition.

If you require further help and advice and would like to discuss how Hunt & Coombs can help you with a divorce or any other area of family law please contact our Family Law Services & Divorce Team on 01733 882800.

Author

Sophie Scotcher, Solicitor

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.