As you may have seen recently, one of our Family Law experts, Diane Mathews, has been posting about the need for the law to be brought up to date in line with modern times, highlighting the case of Mrs Owens divorce. Diane has now produced a further article about why seeking fault should not be necessary.

Last week Family Lawyers were very much involved in the spectacle of Mrs. Owens being obliged to go to the Supreme Court, the highest Court in the land, in an effort to end her marriage.

Questions have been raised as to why this was necessary.

Statistically, in England and Wales, there were some 107,000.00 divorces in 2016.  The test as to whether a Petitioner is entitled to a decree of divorce is that the marriage has broken down irretrievably.  Irretrievable breakdown must be established by reference to one of five facts, two of which, adultery and unreasonable behaviour, are based in fault.  Approximately 60% of divorces are based on one of these facts.

There is a growing opinion that it is time for a change.  High profile supporters of such change are Lady Hale (one of the presiding Judges in the case of Owens), the retiring President of the High Court’s Family Division, Sir James Munby, and Sir Paul Coleridge of the Marriage Foundation.  It is also worthy of note that the family law organisation, Resolution, has campaigned on the issue for years.

The fact that Mrs. Owens has not, thus far, been able to prove that her husband’s behaviour meets the legal test and remains unable to end her marriage must add weight to these views.

I regularly witness the damage that a fault based system causes to divorcing couples and, of course, their children.  In my experience, people do not enter into the decision to end their marriage easily.  Invariably, my clients have given much thought to the future and they have, frequently, attended counselling sessions.  It is difficult to explain to people that, unless they have been separated for at least two years, one of them will need to be able to accuse the other of some kind of fault to bring the marriage to an end.  Frequently, this causes difficulty and it becomes almost impossible to keep the situation amicable.

The difficulties, often, impact on the negotiation of the financial settlement and, of course, on matters relating to children.  A further factor (one which has not arisen in the Owens case) is the rise of litigants in person.  Now, following the 2013 Legal Aid cuts, approximately 80% of family cases involve a litigant in person.  It is almost impossible for someone without the guidance of a Family Lawyer, to understand how to complete a fault based Divorce Petition.  Further, it is difficult to understand how a litigant in person can possibly understand that they do not have to defend each and every allegation made against them.

The recent digitisation of the divorce process appears to add a further reason to bring change to the current system.

The need for divorce reform is becoming clear.  It has been suggested that a no fault system would lead to an increase in the rates of divorce.  However, this does not appear to be the case in countries where the law has changed.  Further, it has also been argued that divorce should be difficult to ensure that it is not a decision people take lightly.  However, is it really sensible, or fair, for parties to a marriage to be forced to remain in a difficult partnership (which may even involve violence) unable to move on until they have proven the breakdown of the relationship?

The modernisation of the current system is becoming increasingly urgent.  The position of Mrs. Owens simply underlines this.

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