Despite recent campaigns for the introduction of "no fault divorce" in this country the position remains that fault has to be shown to obtain a divorce. Whilst divorces can take place based on a period of separation most are based on adultery or unreasonable behaviour. The details and allegations have to be proved if the divorce is not agreed – although technically the key is whether a divorce is defended as a divorce does not actually need the consent of both parties unless it is based on two years' separation.
The vast majority of divorces are uncontested. That means that even though both parties do not necessarily agree that there should be a divorce one has to take a pragmatic approach because it takes "two to tango". Allowing a divorce in that situation to go ahead can be a very difficult and painful decision to make when one party has been fighting hard to keep the marriage together and does not accept that it has irretrievably broken down. However the law is that the unreasonable behaviour or adultery must be proved and until the legislation is changed this position will remain.
The case with Mr and Mrs Owens was unusual. Mrs Owens wanted a divorce and based that upon what she said was her husband's unreasonable behaviour. He said that there was not sufficient and in any event the marriage had not broken down. The Judge first hearing the case and then the Court of Appeal agreed with Mr Owens although the comments from the first Judge were surprising and a little staggering in that he seemed to accept that a degree of unreasonable behaviour was natural for all marriages! Or perhaps the Judge was just a realist?
The Supreme Court which is the highest Court in the country will now hear the appeal of Mrs Owens. Resolution the National Association for Family Lawyers is attempting to intervene and be involved in that appeal although the key message from Resolution is that the legislation should be changed whatever the outcome of the Owens case. The arguments before the Supreme Court are likely to be technical in nature centring on the actual wording of the legislation about unreasonable behaviour being a "fact" as it is called for a divorce to take place based upon and how much of that needs to be objective and how much subjective. The case has sent ripples through the family legal world in that Resolution's Code of Conduct adopted by most family lawyers is to keep allegations of unreasonable behaviour to the minimum and avoid causing additional upset by giving full details even if they are true. The worry is that by reducing and minimising the allegations of unreasonable behaviour that could put the divorce in jeopardy and so if we are not careful much more effort will be put into cataloguing problems during the marriage.
A balance does of course have to be reached in the absence of legislation to change the law. What this does mean is that there will be situations such as with Mr and Mrs Owens where a defence to a divorce can be mounted and could succeed. Leaving aside the sadness for Mr and Mrs Owen in having to fight over whether their marriage has broken down (and nobody can expect that that fight will make it more likely they will have a reconciliation!) is the huge amount of legal costs that both of them will spend in the litigation. However Mr Owens has only exercised the right that he has to say "no" to a divorce because he believes he had not acted unreasonably. One of the repercussions of getting married is that if the relationship does not work a divorce can only take place based upon the current law and although that dates back to 1973 we are not in a situation where "no fault divorce" is possible.
There are those that would say already that getting a divorce is too easy. Very often details of unreasonable behaviour can be agreed in advance to avoid upset and unnecessary arguments over why a marriage has broken down. This usually is the best way to try to agree a course of action even if the divorce itself is not agreed as such. It still does not change the basic position that a divorce cannot just be obtained on demand. Careful drafting of a Divorce Petition in these situations and the proper handling of a divorce by qualified family lawyers who adhere to the principles and practice within the Code of Guidance of Resolution is therefore essential. Another worrying trend is that more divorces are taking place online without the advice of Solicitors at all so the danger with this is that those people filling in their own Divorce Petitions are going to get into even more difficulties and cause more unnecessary work for the Court system which has already been in a state of meltdown with the volume of work that they have had to deal with. Their work has increased because of centralising divorce within regional units but also with the loss of legal aid leading to more individuals acting in person and without a Solicitor. Taking all these factors into account we would seem to be approaching a "perfect storm" of a very changed landscape for family law.
Commentary by Neale Grearson, Head of Clapham & Collinge Family Law Department.
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