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Finding ‘no fault’ with divorce

11/04/2018

A high profile case that has seen a court refuse to grant a divorce to a woman after 40 years of marriage has thrown a spotlight on matrimonial law and the need for reform.

The case of Owens v Owens has led to the President of the Family Division Sir James Munby call for a review of marriage laws and campaign group Resolution to press for an immediate no-fault divorce option.

One of our family law experts Associate Harbinder Gosal discusses the issues raised in the case of Owens v Owens:

I’m sure when Tini and Hugh Owens married in 1978 they never expected the demise of their relationship to be played out so publicly. The couple have lived apart since 2015 but Mrs Owens’ application for a divorce, which is contested by her husband, has been turned down as she was deemed to have not been able to demonstrate to a sufficient legal standard that her marriage had really broken down.

Mrs Owens’ appeal against this ruling will be heard in the Supreme Court in May and, in an unusual step, the campaign group Resolution has been granted leave to intervene in the proceedings.

In the UK, a no-fault divorce doesn’t exist like it does in some American states. There are five grounds for divorce here – adultery, unreasonable behaviour, desertion, if you’ve been living apart for two years and both parties agree or you’ve been separated for at least five years, in which case your former partner doesn’t have to consent to a divorce.

Resolution has campaigned for a no fault divorce option for some time now and many family lawyers are hoping it will become a reality in the not too distant future.

Even Sir James Munby, the President of the Family Division, has said that the introduction of a no-fault divorce would help people trapped in a loveless marriage and make it a more straightforward process.

There is a huge appetite among the legal community and the general public for no-fault divorce to reflect modern society and it’s easy to understand why.

It’s always a sad situation when a couple splits, but avoiding anger, managing emotion and making a conscious decision to work towards co-operation from the outset can help reduce the pain of break-up, especially when children are involved. 

Under the Children and Families Act 2014, a separating couple must consider using mediation before they can ask for a court decision, and that will be easier if you can approach it with some form of accord in place.

Without the option of a no-fault divorce couples may cite other grounds to get a speedier divorce, on the basis of unreasonable behaviour or adultery for example, which immediately makes a separation more toxic.

While we wait to see whether a no fault divorce is introduced, the collaborative law process, that we promote at FBC Manby Bowdler, is a different experience from the traditional solicitor-led or court process and has a very high success rate of resolving issues.

It encourages communication, which in turn reduces bad feeling and hostility between the separating couple and is particularly suitable where children are involved. 

In a collaborative law process, both people appoint a lawyer and discussions take place over a series of meetings involving solicitors and their clients. If discussions break down, or one half of the couple opts to go to court, the collaborative process ends.

While we wait for a no-fault divorce option, collaborative law is one step you can take for a smoother path to a permanent separation.

Senior solicitor Emma Smith and partner Philip Cowell are both Collaborative Family Lawyers who can work with you to reach an amicable divorce.

To find out more, visit our Family Law page or make an enquiry below.

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