Divorce – is it time to overhaul the law?

The case of Tini Owens highlights an urgent need for an overhaul of current Divorce Law. The ruling will mean Tini will now have to wait until 2020 to be granted a divorce.

Tini is unable to get a divorce for a full five years after her separation because her husband will not agree to it, and her case does not meet any of the legal grounds for divorce.

In the UK a couple can only get divorced if they can demonstrate that one of the partners is at fault i.e. has done something wrong or they have lived apart for a specified period of time.

Lindsey Canning, head of family law, looks at the case and asks if archaic laws are still binding couples together.

“Lots of married couples decide to go their separate ways. They tie the knot, build a life together, have a family and buy property, then decide to split up and a divorce is completed.

“However in this case Tini Owens’ petition for divorce, where she described herself as being locked in to her 40-year marriage, was contested by her husband – which happens in just one per cent of divorces.”

Mrs Owens' divorce petition was heard in the Supreme Court after being rejected by the High Court and Court of Appeal. Mr Owens disputed the 27 allegations of his “unreasonable behaviour”.

She had previously been told that her husband’s behaviour was “to be expected in a marriage” and that “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage”.

Lindsey added: “Some people have suggested that law should be changed to allow "no fault" divorce, meaning either spouse would be entitled to a get a divorce from the courts without having to show their spouse had done something wrong.

“The divorce law really needs to change, the Supreme Court seem to agree, but are bound by such an archaic law.

“The current process can be difficult for the parties and Tini Owens’ experience of a contested divorce shows it’s time to overhaul the law.”

In a survey completed by YouGov, 69% support 'no-fault' divorces. Respondents said that people should be able to seek a divorce without having to show their spouse is at fault.

Under divorce law in England and Wales, you must be able to establish the marriage has irretrievably broken down by proving one of five facts. Three facts require a two-year separation/desertion if the divorce is uncontested, or five if it is contested, before a divorce may be granted.

Alternatively you may be able to prove that your spouse has committed adultery, or their behaviour has been so unreasonable that the marriage has become untenable. Tini Owens’ problem was that the behaviour which she pleaded was not sufficiently “unreasonable”.

Research shows that more than 50 per cent of marriages end like this – although nearly a third of people later admit that allegations of fault were not wholly true, but the quickest and easiest route out of a broken relationship.

Lindsey added: “The adultery or unreasonable behaviour must be that of the partner you seek to divorce from – not your own. This means that if one partner, like Mr Owens, wants to remain married, it is perfectly feasible for the other party to contest the divorce petition.

“The calls for a “no fault” divorce would offer an alternate route out of a marriage and shift the focus to the well-being of children and financial settlements rather than proving blame.

“Divorce can be painful in many instances, is it not time to make it as non-confrontational as possible to allow people to move forward with their lives”.

For advice on divorce and family law contact Lindsey Canning at Wake Smith Solicitors on 0114 266 6660.

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