Thu 17 May 2018

No fault divorce? No, copy Scotland.

I was on Radio Scotland today, talking about the Supreme Court appeal in the case of Owens v. Owens.

Mr and Mrs Owens separated in February 2015.  Mrs Owens has sought to divorce her husband on the basis that the marriage has irretrievably broken down, as proven by the fact that he has behaved in such a way that she cannot reasonably be expected to live with him.  This ground of divorce is sometimes shortened to "unreasonable behaviour". 

Very unusually, Mr Owens defended this divorce petition.  It is usual for parties to defend divorce proceedings on the basis that they don’t agree how money and assets should be divided, or that they can't agree what should happen in relation to the care of their children.  It is very unusual for parties to defend divorce proceedings on the basis that they just don’t agree with the grounds of divorce, or whether they should be divorced at all.  But that is what Mr Owens has done.  His position appears to be that he does not want to be divorced, and that he doesn’t agree with what Mrs Owens has said about his behaviour.  This is despite the fact that the parties have been separated for over three years now, and that Mrs Owens has admitted to an affair a few years before the separation.  This has left the court to determine whether what Mrs Owens has said is "enough" to give grounds for divorce. 

The court at first instance agreed with Mr Owens, and found that he had not behaved in such a way that his wife could not reasonably be expected to live with him.  The divorce was therefore not granted.  Mrs Owens took her case to the Court of Appeal, who dismissed the appeal.  She has now taken her case all the way to the Supreme Court.

It is questionable whether Mrs Owens would have taken her case so far, had this not been taken up as a cause by Resolution (the English family law association), who have used this as a means of highlighting what they see as the unfairness of the current English divorce laws, and are campaigning for "no fault" divorce. 

Many people might assume that you can get a divorce if you want one.  That is not actually the case.  In England, you need to prove that the marriage has irretrievably broken down, which can be shown in one of five ways; the adultery of the other spouse; "unreasonable behaviour"; desertion by the other spouse; two years' separation if the other spouse consents to the divorce; or five years' separation in which case no consent is needed.  This is the trap that Mrs Owens has fallen into - she has not yet been separated for five years, and for whatever reason, her husband did not wish to divorce her on the grounds of her adultery, or consent to a divorce on the basis of two years' separation with consent.  It has to be remembered, however, that this case is very unusual.  It is something of a truism that "hard cases make bad law".  The question is therefore whether Parliament should be pressured to change the law, based on this case?

What Resolution propose is a system whereby a spouse would say that their marriage has irretrievable broken down (even if it has only broken down very recently).  They would serve a notice to that effect.  After a period of six months, if they still wish to proceed, they would be able to obtain a divorce.  The spouse starting the divorce proceedings would not need to cite any particular reason for the breakdown of the marriage.

A careful balance needs to be struck.  Those in favour of a change in the law suggest that it is in no one's interest for anyone undergoing the difficult process of divorce to suffer unnecessary distress, due to rehashing allegations about blame, or "who did what". 

However, some religious groups have suggested that de-linking divorce from the fault grounds altogether risks making the divorce process appear easier, pushing couples down the divorce process sooner, and accordingly weakening marriage. 

There are also some gender issues.  Would the Owens case appear as sympathetic, if it were Mr Owens who had had an affair, and who then sought to divorce Mrs Owens (for the sake of this example, assuming she is the financially weaker party) on the grounds of her behaviour?  Should he be entitled to an immediate divorce on that basis, if Mrs Owens wished to remain married and were to be left worse off financially as a result of the divorce? 

So what is the solution?  I think England could copy the Scottish system.  In Scotland, we still have one ground of divorce, the irretrievable breakdown of the marriage, which is proven in four ways: adultery of the other spouse; "unreasonable behaviour"; one year's separation if the other spouse consent; or two year's separation is the other spouse does not consent.  In Scotland, the separation grounds were shortened from two years and five years respectively in 2006. 

In my view, the current Scottish system works well.  It is not a move to the "no fault" system proposed by Resolution, but it allows a shorter time to proceed to divorce for those who, for whatever reason, do not wish to or cannot rely upon the fault grounds.  It would also avoid the potential political and religious difficulties involved in removing fault from the grounds of divorce altogether.

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