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Renewed Calls for Divorce Law Reform

The highly publicised case of Mr and Mrs Owens has focused considerable attention on the ongoing calls for divorce law reform in England and Wales. Under the current law, there are five “facts” (reasons) that can be used to demonstrate that a marriage has irretrievably broken down. These are:

 

1. Adultery

2. Unreasonable behaviour

3. Desertion

4. Living apart for more than two years, where both parties agree to the divorce

5. Living apart for at least five years, even if one party disagrees.

 

Desertion is a rarely used technical reason for a divorce. Adultery often does not apply. Therefore, unless the spouses are prepared to wait two years if they both want a divorce, or five years if one party wants to stay married, most people are forced to fall back on the fact of unreasonable behaviour.

 

For years, specialist and competent family lawyers have advised their clients that the allegations of behaviour in an unreasonable behaviour divorce petition do not need to be damning of the person on the receiving end. In almost all cases, the divorce proceeds smoothly without those allegations of behaviour being scrutinised. After all, if one party no longer wants to be married, surely it cannot be right to force them to remain so.

 

In the case of Mr and Mrs Owens, Mr Owens wants to remain married and challenged the allegations of behaviour put forward by Mrs Owens on the grounds they were insufficient to justify a divorce. On 16th May 2018, this case went all the way to the Supreme Court and a final decision will be made as to whether Mr Owens’ behaviour was objectively unreasonable enough to warrant Mrs Owens being granted the divorce she has been seeking.

 

Although the case is not about law reform and the apparent need for a no-fault divorce to be available to those who are unhappily married, whatever the outcome for Mr and Mrs Owens may be it is surely clear to those reading about these long running proceedings in the papers that the law in this area is outdated and needs to change.

 

Judgment will be handed down by the Supreme Court on 22nd May 2018.

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