The post Owens v Owens Landscape. What does it mean for ‘no fault’ Divorce?
For a case that generated so much interest, both with Family Lawyers and the general public, the end result of the infamous Owens case was a rather disappointing finale. Just to recap: Mrs Owens petitioned to dissolve her marriage on the basis of Mr Owens’ unreasonable behaviour. Mr Owens defend the allegations and, eventually, the court found that the allegations were “of the sort to be expected within a marriage” and that she had not demonstrated that the marriage had irretrievably broken down. Mrs Owens appealed, and the matter found its way to the Supreme Court.
The Supreme Court backed the initial judge’s analysis of the case and Mrs Owens was compelled to stay married to Mr Owens, despite it being clear to everyone but Mr Owens that the relationship was over. The Supreme Court’s judgement confirmed that the law, under the Matrimonial Causes Act 1973, had been applied correctly, even if the result was abjectly unfair. While the case had been ongoing, it had generated renewed calls among Family Lawyers and the press for the law in respect of divorce to be changed, so that an element of fault did not have to be alleged. The Judges expressed dissatisfaction with the current law but reminded those interested that is the job of parliament to change the law, not the judiciary.
Thus, all heads turned to the Government, who promptly announced, via the Ministry of Justice, a consultation paper called Reform of the legal requirements for divorce. The Government’s proposal is to remove both the conduct-based Adultery and Unreasonable Behaviour particulars and the separation based 2 years separation with consent, 5 years separation and Desertion. These could be replaced by an, as yet, undetermined notice period. One of the parties would simply petition the court with a Notice of Intention to Divorce. The court would no longer need to check for the evidence in support that the marriage had irretrievably broken down. It would still be required to check that the court has the power to act, that there is a marriage to dissolve and guard against fraudulent petitions.
The Government has also recognised that allowing respondents to a petition to attempt to defend a divorce serves very little purpose and often allows abusive spouses the opportunity to continue their abusive conduct. It therefore proposes to remove this ability.
As promising as this proposal sounds, it must be remembered that this is still merely a consultation proposal and very much in the embryonic stages. If the proposal does get to the stage to be introduced as a bill to Parliament, whether it will succeed is a very different matter. Objections are often raised that marriage is a solemn undertaking and that a ‘no-fault’ system would risk undermining it. Arguments linking the ease of divorce to an increase in the overall amount of divorces are often mooted. Various religious groups raise their own objections about protecting the sanctity of marriage. Whether the current Government has enough strength to attempt to push a tricky reform, with substantial social and religious implications, through parliament remains to be seen. Denying respondents the right to defend the divorce may sit uncomfortably with those who promote the rights of the individual.
It is also worth remembering that no fault divorce has been mooted many times and received much superficial support, to little effect. It was proposed under the Family Law Act 1996. On this occasion, it lingered in the consultation stage until 2014, when it was quietly killed off. In 2015, the then Right Honourable Richard Bacon introduced a Private Members Bill which aimed to introduce no fault divorce. That particular bill proceeded no further. Resolution, the national Family Lawyer’s association, has been calling for no fault divorce for many years, to little avail.
For now, despite the calls from every corner for change, the pace remains, as it has for many years, slow. Just like Mrs Owens, Family lawyers and the public may have to wait a long time to get a result that appears to be universally desired.
Clive Hogan – rhw solicitors llp