Currently the sole ground for divorce in England &Wales is that the marriage has ‘irretrievably broken down’. The irretrievable breakdown can currently be proven in one of five ways: adultery, unreasonable behaviour, desertion, two years separation with consent or five years separation, a requirement which has remained the same since the 1973.

The most common factor used to proceed with a divorce is ‘unreasonable behaviour’, it is believed that this is due to the extending cooling off period post-separation a couple would have to wait in order to divorce without prescribing blame. The choices are to stay married for two years, or find someone to blame. In order to proceed on the basis of behaviour, the Petitioner must give details in Court to evidence that ‘the Respondent has behaved in such a way that they cannot reasonably be expected to live together.’

The unfairness inherent in the current legislation was highlighted by President of the Family Court in a recent case the Central Family Court refused to grant Mrs Owens (the petitioner) a divorce despite the fact her marriage had broken down. The judge decided that Mrs Owens had not proven that her husband had behaved in such a way that she could not reasonably be expected to live with him. The case progressed to the Court of Appeal in 2017, and the Supreme Court in 2018 but both dismissed Mrs Owen’s appeal leaving her forced to remain married.

Lady Justice Hale was involved in the Owens’ case when it reached the Supreme Court and she commented that she “found this a very troubling case.”

“It is not for us to change the law laid down by Parliament - our role is only to interpret and apply the law that Parliament has given us. This was a case which depended upon the cumulative effect of a great many small incidents said to be indicative of authoritarian, demeaning and humiliating conduct over a period of time. Those who have never experienced such humiliation may find it difficult to understand how destructive such conduct can be of the trust and confidence which should exist in any marriage.”

Lady Hale’s comments illustrate the problem facing divorce lawyers across England and Wales; even if a spouse does not want to allege fault of the other in order to bring the marriage to an end, they would be encouraged to do so in order to obtain a quicker divorce. It may be that a couple on speaking terms will agree on the facts used for the divorce and will agree on the allegations of fault to be listed in the petition, but this can only add to tensions and makes the process needlessly complicated.

The team at Bridge McFarland welcome the news and hope it will help more people to end their marriages on good terms and go further to protect children from the stress caused by warring parents.

If you are considering getting a divorce then you can get in touch with Bridge McFarland today for a free 30 minute consultation.