Calls For A No Fault Divorce?
If one person to a marriage commences divorce proceedings, it does not always follow that the other person within the marriage will agree to the divorce.
In those circumstances, the person who is opposed to the divorce (and who would be on the receiving end of a divorce petition) can choose to take legal steps to defend the divorce to try and prevent the divorce from happening.
In the event of a defended divorce then it is likely that one or more Court hearings will follow. If the parties cannot settle the matter between them, the Court will decide if the divorce is to go ahead, or not, as the case may be. These types of cases are rare but they do occur and this type of situation arose in a recent case which attracted considerable media coverage.
The circumstances of that case concerned a Mr and Mrs Owens. They were married in 1978 and separated in 2015. Mrs Owens initiated divorce proceedings on the basis that Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him. Mrs Owens commenced divorce proceedings for what is termed as unreasonable behaviour.
Mr Owens did not agree to the divorce going ahead and he took legal steps to defend the divorce. A number of lengthy (and undoubtedly costly) Court hearings took place and, having heard evidence from both parties, the Court decided that Mrs Owens had failed to prove her case and would not be entitled to a divorce on the basis of unreasonable behaviour.
It is noteworthy that the Court in this case commented that the law in this area made it difficult for Mrs Owens to obtain a divorce It is open to Mrs Owens to initiate divorce proceedings once she and Mr Owens have been separated for a full period of 5 years and it is likely to be easier for her to obtain a divorce at that time.
The difficulty for the Court in determining this matter arose in relation to the reasons Mrs Owens had included within her Divorce Petition and the Court's interpretation of those reasons, after hearing evidence from both Mr and Mr Owens.
A consequence of this decision has led to calls to be made with increased fervour for what could be termed a 'no fault' divorce. At present, the legal position on divorce is that if the parties have been separated for between two and five years they must both consent to the divorce for that to proceed. Alternatively, the person initiating the divorce must do so on the basis of the other person's behaviour, or adultery if that is relevant.
A 'no fault' divorce could do what it says on the tin; a divorce petition could simply acknowledge that the person bringing the divorce does not consider they can continue live with their spouse and that they believe the marriage is at an end. The divorce could then proceed on that basis.
It will be a decision for parliament as to whether the current law concerning divorce proceedings might be amended or updated (the relevant piece of legislation was passed in 1973) although if more cases like that of Mr and Mrs Owens find their way to the Court, this might lead to an amendment of the current divorce law.
It is unknown at this stage whether Mrs Owens may seek to appeal the decision, which was in fact an appeal from the original decision.
If you are considering divorce proceedings or your spouse has initiated the process, do not delay in obtaining legal advice about the consequences for you. Contact our specialist Family Law team today.
This literature is intended purely as an overview of this area of law and no action should be taken upon it without specific legal advice.