Divorce Reform is coming

The Ministry of Justice is currently consulting on proposals to reform the grounds for divorce. Changes to divorce in England and Wales have been long awaited and many would describe the current system as outdated, and antagonistic.

At present, if a person wishes to divorce their spouse, they must satisfy the court that the marriage has broken down irretrievably and thereafter present one of the following facts; the unreasonable behaviour of their spouse, that their spouse has committed adultery (for which an admission is required), desertion, that they have been separated for 2 years (consent is required), or separation for 5 years (consent is not required).

Owens v Owens 

The recent case of Owens v Owens [2018] UKSC 41, highlighted just how out of date current law is.  In 2015 Mrs Owens sought to divorce her Husband from whom she had separated, and relied on the fact that Mr Owens had behaved so unreasonably that she could no longer be expected to live with him.  Mr Owens defended the petition, arguing that the behaviour particulars cited were insufficient and the divorce should not be granted.  Mrs Owens was granted permission to amend her petition, to which a total of 27 points of unreasonable behaviour appeared.  Unfortunately for Mrs Owens, despite this, the court found that she did not meet the required legal test, and her petition was dismissed.

Mrs Owen appealed the decision, and the court ruled that the law had indeed been applied correctly, although it was acknowledged by the Judge that this left Mrs Owens “…trapped in a loveless marriage.”

Mrs Owens then took her case to the Supreme Court in 2018. She had hoped to establish that whether she could reasonably live with her husband due to his behaviour was a subjective test, personal to her and too much weight had been attributed to the legal provisions.

Upcoming changes

The Supreme Court dismissed Mrs Owens appeal, ruling that she must remain married to Mr Owens until she has been separated for at least 5 years.  The Court’s judgement was sympathetic to Mrs Owen’s position, stating it took “…no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue…”  The ruling confirmed that it was an “…objective test with subjective elements…”, and that s.1 of the Matrimonial Causes Act must be applied conscientiously.  The Appeal was dismissed.

Importantly however, the majority invited Parliament to consider replacing a law which denies Mrs Owens a divorce in the present circumstances.

The government proposes to retain the sole ground of irretrievable breakdown. A new notification system, or waiting period, would replace the existing method of evidencing irretrievable breakdown by reference to one of the five facts mentioned above. The consultation also proposes to remove the ability to defend a divorce, other than in relation to lack of jurisdiction, validity of the marriage, fraud and procedural compliance.

The puzzle however is not yet complete and there remain important questions about precisely how a notification procedure would operate in practice.  This is due to be discussed in Parliament this coming May.

The changes are welcomed by Family Lawyers up and down the country, and we wait patiently for the next update.

Elaine Flynn @EF_Familylaw

19.3.2019