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Does the Owens divorce case ruling mean 'no fault' divorce is off the agenda?

25th July 2018

Does the Owens divorce case ruling mean 'no fault' divorce is off the agenda?

The much awaited decision on the Owens divorce case in which the Supreme Court upheld the High Court decision not to grant Mrs Owens a divorce may be a setback for those hoping for a change in the law to allow for ‘no-fault’ divorce in England and Wales, but could it have the opposite effect?

Higgs' Family law expert Philip Barnsley comments:

“In current law, unless couples have lived apart for two or five years, they are legally required to assign blame for the relationship breakdown in order to seek a divorce. This can make an amicable agreement much more difficult, particularly where children are involved.”

The basic facts of the case are:

  • Mr and Mrs Owens were married in 1978 and separated in February 2015.
  • Mrs Owens filed for divorce in May 2015 contending that the reason for this was Mr Owens behaviour. In her petition she gave details of various incidents throughout the marriage
  • Mr Owens defended the divorce and argued that his behaviour was not sufficient to satisfy the requirements of the law and therefore Mrs Owens’ petition should be refused
  • Judges in both the Family Court and Court of Appeal agreed and dismissed the petition, sympathising with Mrs Owens’ predicament of being tied into what was described as “a loveless marriage” but feeling constrained by the law meaning that blame has to be found and proven in order to satisfy the current law under s1 of the Matrimonial Causes Act 1973.

“Today’s Supreme Court decision upholding that decision on first examination may appear to be a setback to those seeking a change in the law to allow so called ‘no fault’ divorce.

“However, the Owens case is seen by many leading divorce lawyers and senior members of the judiciary as a clear example of why divorce laws in England and Wales needed to change. The UK's most senior judge, Baroness Hale had previously called for the laws to be changed, describing the current situation as ‘confusing’ and ’unjust’.

“It will be interesting to see what happens following this decision, but there is no doubt that the campaign for no fault divorce to be made legal, as spearheaded by the family law group Resolution, will only gather momentum now in the face of this decision.

“It surely has to be time for England and Wales to move in line with many other countries around the world including Australia, the USA and Spain in allowing divorce without blame, and end the culture of blame and animosity that was witnessed in the Owens case and played out for all the world to see.”

If you would like further information on any of the issues rasied in this article please contact Philip Barnsley, Head of Higgs & Sons' Family team 

 

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