17th May 2018

In English Law if a married couple wishes to divorce, the party applying for a divorce must show that the marriage has irretrievably broken down. If the couple has not been separated for two years or more, the Applicant needs to show fault on behalf of the other party, either in the form of bad behaviour or adultery (having an affair).

Mrs Tini Owens is a 66 year old lady who has applied for a divorce alleging bad behaviour by her husband, Hugh.   He has disputed the allegations. When her case first came before the Family Court, the Judge refused her a divorce as it was felt that the evidence she relied upon was not strong enough. She took her case to the Court of Appeal who were not prepared to change this decision. She has now gone to the highest Court in the land, the Supreme Court, who are hearing her further appeal.

By now Mr and Mrs Owens have lived separately for around three years. Objectively it seems that the marriage is clearly over. Surely Mr Owens accepts this, but he cannot accept the allegations made against him.

This couple are therefore in the unfortunate position of having to have their lives trawled over in public in Court proceedings, largely to confirm something which they already know, namely that their marriage is an empty shell and no doubt has been very unhappy for both of them for some time. Is there not a better way to deal with these very distressing situations?

The majority of legal professionals feel that the time has now come to institute ‘no fault divorce’. Where parties make allegations of misbehaviour against each other, this can often have a serious knock on effect in other issues arising from the separation, namely financial arrangements and the arrangements for children. This usually makes a difficult situation far worse.

If couples wish to avoid blaming each other, then they have to wait for at least two years before they can present their application for a divorce. This does nothing to assist the parties in trying to reach agreement on the arrangements following their separation.

The Family Team at Ben Hoare Bell believe that in dealing with separations, a constructive and conciliatory approach should be adopted. The parties and their children need to live with the arrangements, sometimes for many years after the separation. Everything should be done to avoid confrontation and blame. We support the idea of ‘no fault divorce’ and hope that when the Supreme Court gives its Judgment in Mrs Owens’ case, that the Judges agree that a fault based system of divorce has no place in modern society.

If you are in the unfortunate position of your marriage having come to an end, our family team is here to help you and can be contacted via any of our offices.

Blog by Mark Harrison, Partner and Head of the Family Department