Articles

  • October 2018
    To blame or not to blame

    Current headlines and news programmes are reporting that Parliament is going to introduce no fault divorce, but it seems likely that there will a lengthy public consultation process before Parliament debates, let alone enacts, “no fault” divorce.

    We have been here before.   The Family Law Act 1996 was fiercely debated, and was eventually passed into law but many of its provisions were repealed without ever coming into force, including those for no fault divorce.  The Act provided for a period of 9 months reflection on reconciliation, and finances had to be resolved before granting a divorce.

    Since the 1969 Divorce Reform Act, there has been only one ground for divorce namely “irretrievable breakdown” of the marriage in question which, since 1973, is proved on 1 of 5 facts:

    1. Adultery
    2. Unreasonable behaviour
    3. Two years' desertion
    4. Two years' separation (with both parties agreeing)
    5. Five years' separation

     

    Clearly to prove adultery or unreasonable behaviour, allegations are required, which may create more hostility.  The third party no longer has to be named in adultery cases, and the party receiving a petition alleging unreasonable behaviour does not have to admit anything – simply not to defend.  It is not possible to petition for divorce using your own adultery or unreasonable behaviour.

    Solicitors try to keep allegations to the minimum necessary, so the focus will be on sorting out arrangements for the children and finances. However, in the Owens case, much reported in the press, the judge ruled that the allegations were insufficient and that Mrs Owens was “more sensitive” than most wives. The Supreme Court although unable to set aside the judge’s fact finding questioned whether the cumulative effect of Mr Owens’ behaviour had been taken fully into account.  The Supreme Court was dissatisfied with the outcome and questioned whether the current state of the law is satisfactory.  This case may mean that stronger behaviour allegations are required by judges, which will increase ill-feeling between divorcing couples. However the case has also influenced the call for reconsideration of no fault divorce.

    For further information please contact Ruth Jenkins at ruth.jenkins@jackamans.co.uk.

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