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25th October, 2018 by Justine Flack
There has been a lot of talk about no fault divorce in the press recently, with the government now launching a public consultation to look at changing divorce law in the UK. Family Law partner Justine Flack looks at the background to the issue and shares her views on the matter.
You may have heard something about Mr & Mrs Owens in recent weeks. Tini Owens is trying to divorce her husband to whom she has been married since 1978. She claims that the marriage is over because of his unreasonable behaviour. The court, including the Supreme Court, has determined that the behaviour she complains of isn't enough for her to end the marriage now. She will, therefore, have to wait for her divorce until 2020 once she and Mr Owens have lived separately for a period of five years.
Many people and a significant number of divorce lawyers feel that this situation is out of step with society. The legislation that governs divorce dates back to 1973 and is felt to be due for reform. The Supreme Court urged the government to consider this in their judgement in the Owens case. The government has now opened up a public consultation.
What is it?
Currently, to start divorce proceedings where you haven't been apart for five years (or two where both agree the marriage is over) the petitioner has to issue based either on the other party's adultery or unreasonable behaviour. Effectively, therefore, they have to blame or attribute fault to the other person. No fault divorce would remove that requirement. It would allow people to end the marriage based on the fact that they no longer want to be in a relationship with the other person.
There are varying views about this - will it make divorce too easy? Should the government focus on keeping families together? My view, as someone who has represented divorce clients for more than 22 years, is that no divorce is easy, particularly in emotional terms. Anything that makes the process less difficult is to be welcomed.
For a long time there has been an emphasis on resolving other issues amicably, such as financial matters and children disputes. However, we often have to start the process with one person having to blame the other and attribute fault. This seems contradictory. Focusing on someone's shortcomings is less likely to encourage people to work together to resolve other issues. It, therefore, starts the process on the wrong foot.
It is only in very extreme cases that the behaviour will affect financial matters. Therefore, detailing a list of misdemeanours has no impact; the other party will not be punished financially for being a poor husband or wife.
If the marriage is over, it's over. The easier the process, the sooner people can move on. Adults should be able to make that decision which is rarely an easy one. Mr Owens has defended the divorce. The court has supported him but it's unlikely to result in Mrs Owens reconciling with him; the love has gone. All it has achieved for them is to run up legal fees and increase hostilities. However, for us, it has brought this issue to the fore and therefore maybe there will be some wider benefit if it helps us to move away from the blame culture in family breakdown.