Divorce lawyers have long campaigned for a change in the law when it comes to the legal basis for divorce, away from a divisive fault based system to a pragmatic child focussed one.
If the Petitioner is forced to make allegations against the Respondent it can make it difficult to work together as effective parents. This is emotionally damaging for children.
The Matrimonial Causes Act 1973 provides that the only ground for divorce is irretrievable breakdown. To establish the ground you rely on one of five facts, unreasonable behaviour, adultery, 2 years separation with consent, desertion or 5 years separation.
The case of Owens is a rarity. The husband defended the divorce on the basis the unreasonable behaviour particulars were not adequate to establish irretrievable breakdown, not on the basis that the marriage could be reconciled.
The District Judge considering the papers initially decided that the unreasonable behaviour particulars were flimsy at best and simply represented behaviour one would expect during any relationship breakdown, the Decree Nisi was therefore refused.
The case went to the Court of Appeal in March 2017 where the wife’s appeal against the decision to refuse Decree Nisi was also refused. It was held that the Judge at the court of first instance applied the law correctly as it currently stands, they went on to comment that there was an extremely strong argument that the law no longer reflected modern day realities and no fault divorce law was clearly a preferred approach. Had she accepted the decision the wife would need to wait until she had been separated 5 years before she could proceed (2 years separation would require the Respondents consent).
As child focused lawyers at Edwards Duthie Shamash we have historically encouraged parties to consider particulars that were not hostile. Since the Court of Appeal decision it is now imperative to get case specific advice when drafting a petition.
The wife has secured permission to take her case to the Supreme Court and is due to be heard this year, watch this space…
Article by West Essex Life (March 2018, page 85)