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It’s not you it’s me – time for no fault divorce?

Breaking up can be hard to do under our current divorce laws. To get divorced you must prove that your marriage has broken down irretrievably because of one of the following reasons:

Adultery

Unreasonable behaviour 

Desertion

You have lived apart for more than two years and you both agree to the divorce 

You have lived apart for at least five years – your husband or wife does not have to agree to the divorce

There are other confusing rules for example when you can and cannot rely upon adultery – if your spouse had an affair with someone of the same sex then he or she has not committed adultery. Adultery can only be committed between a man and woman. 

Most divorces are not contested but where they are getting divorced is not always easy if you are relying on your husband’s or wife’s is unreasonable behaviour.

Take the case of Owens v Owens [2018]. After a 40-year marriage Mrs Owens consulted solicitors about a divorce. She first saw her solicitors in 2012 (around the time that she had an affair) but she did not start her divorce proceedings until May 2015 a few months after she left the family home she was sharing with Mr Owens.

Mr Owens contested the divorce (despite Mrs Owen’s affair), so the court had to decide whether Mrs Owens had grounds for a divorce. The judge who dealt with her case said that Mrs Owens had exaggerated Mr Owens’ behaviour. He said that Mrs Owens was “somewhat old school ” and that she was “more sensitive than most wives “. Mrs Owens request for a divorce was refused.

She appealed the decision of the judge and her case went all the way to the Supreme Court. However, she was not able to convince the five judges of the Supreme Court that she had proved that her marriage had broken down irretrievably.

The President of the Family Division said, “it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people say that it should be “. 

While the judges made the decision not to grant Mrs Owens a divorce, they expressed concern that Mrs Owen had to remain trapped in a marriage that she wished to end and they urged Parliament to change the law which they thought was no longer fit for purpose.

The long-awaited divorce reforms are due to come into effect in the middle of 2022. These changes are set out in the Divorce, Dissolution and Separation Act 2020. The new laws when they come into force will replace the need to provide evidence of behaviour or separation with a new requirement to provide a statement of irretrievable breakdown. It will not be possible to contest a husband or wife’s decision to divorce. It will be possible for both the husband and wife to jointly apply for a divorce. There will be a minimum overall timeframe of six months to conclude the divorce process. 

The new no-fault divorce system will mean that a husband or wife will not be forced to assign blame to get his or her divorce. Many believe that assigning blame only exacerbates conflict in what is already a difficult and stressful process.

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