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A new call for the laws surrounding divorce to be reformed?

Tini Owens and Hugh Owens have been married for 39 years. Mrs Owens applied for a divorce based upon the fact of her husband’s unreasonable behaviour.

It has long been the general position that the grounds one party wishes to rely upon as unreasonable behaviour are subjective. This has meant that these will be accepted by the Court, so long as it can be proven that such behaviour has had a negative impact upon the party seeking a divorce.

However, in this extremely rare case, the court has refused to grant the Decree Nisi despite 27 allegations by Mrs Owens. The conclusion was that these allegations were “of the kind to be expected in a marriage” and that one party’s general unhappiness in a marriage is not a fact which can be relied upon to prove that a marriage has irretrievably broken down. It is reported that Mr Owens has successfully argued that the marriage has not come to an end.

This means that, under the current law, if the court will not allow the divorce to proceed based upon Mr Owens’ unreasonable behaviour and he will not consent to a divorce based upon 2 years separation at the appropriate time, Mrs Owens will need to wait for a period of 5 years to pass before being able to divorce.

Parliament have previously considered a proposed amendment to the law to allow a ‘no fault’ divorce meaning that neither party would have to rely upon particulars of the other’s behaviour, without having to wait a 2 year period. This concept was praised by family lawyers to provide an alternative option to clients seeking a divorce who wish to remain amicable with their spouse during the process, without a need to apportion blame. However, it has emerged that, presently, there are no plans to change the current law.

So what does this mean to those considering issuing divorce proceedings?

Although this is a very unusual case, if a party wishes to petition upon this fact, it highlights the necessity that the court must be satisfied that one party has behaved so unreasonably as to cause a permanent breakdown in the marriage.

If you require any advice or assistance please contact our specialised family team who would be pleased to help.

Kim Busby, Family Law Executive