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Why is the default, ‘fault’?

On the 17th May 2018 the Supreme Court heard the appeal case of Owens v Owens. Adopting a restrictive approach, the judgement was made against Mrs Owens, despite the calls for change and media attention. Divorce alone can be a stressful time and the current law means that a party has to rely on one of the ‘grounds’. As set out below:

  1. Unreasonable behaviour;
  2. Two years separation by consent;
  3. Five years separation;
  4. The other party’s adultery; or
  5. Desertion.

This essentially leads to finding fault with a former spouse, creating an unnecessary slinging of mud, legal expense and ignoring the fact that in some cases the marriage amicably comes to an end. The current law encourages former spouses to look for reasons, which are not inflammatory and so as to minimise tension between the parties.

In October 2015 a ‘No Fault Divorce’ Bill was brought to Parliament’s attention citing that the current law is both rigid and out of date. Whilst Parliament notably pointed out that it is keen to preserve the institution of marriage. The Bill highlighted some key points that ring true throughout family practitioners in the United Kingdom. In essence the Bill proposed that when each party has made a separate declaration that the marriage has irretrievably broken down, then there should be no requirement for either party to satisfy the court with additional facts.

The case of Owens v Owens first hit the headlines in 2017, the wife claimed that she was in a ‘loveless marriage’ and presented reasons to the court such as; the way he speaks to her in an undermining tone, the absence of love and affection and a priority of work over home life, to name but a few examples. Yet the judge took the stance that this was not sufficient enough to satisfy the grounds of divorce, sticking to the objectivity of the law and ignoring how subjectively the husband’s behaviour impacted the wife. The wife will still pursue divorce and the case is ongoing. Sadly, the process for Mrs Owens will be drawn out, expensive and unnecessary.

At Hunt & Coombs Solicitors we understand that divorce can be a difficult time especially if it is defended by your spouse. Our expert family team can advise you on your best legal position so that an appropriate divorce petition can be drafted from the start. If you require further legal help or advice concerning divorce, separation or any other type of family matter please contact our Family Team on 01733 882800 or email [email protected].

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