The hostility that the current divorce system creates has been hitting the headlines as of late – mainly due to the sad case of Tini Owens, who was told she would have to remain in her “loveless marriage”.
The public attention on this case, along with damming words from the judges involved at the hearings, have lead the government to call a consultation on modernising the system. This blog sets out the main issues caused to clients under the current legislation.
What is needed to end a marriage?
The current divorce system has been in place for almost half a century, but family lawyers have long been arguing that the legislation is simply out of touch. Currently, married couples must be able to prove that their marriage has ‘irretrievably broken down’ by relying on one of five facts, namely:
- their spouse’s unreasonable behavior
- their spouse has deserted them
- the couple have been separated for two years (and they both consent to the divorce)
- the couple have been separated for five years (whether both consent to divorce or not)
The first three options rely on one party apportioning blame on the other and can often cause conflict in what may otherwise be an amicable separation. Another option is to remain separated for two years and then separate after this period, but only if both parties consent to the divorce. However, if one party does not consent, they will have to remain separated for five years to divorce legally.
Why did the court refuse Mrs Owen a divorce?
This is the unfortunate situation that Tini Owens found herself in when her husband refused to consent to the divorce and she was unable to satisfy the Court that his behavior was “unreasonable”. Tini took her case all the way to the Supreme Court but was told that she had no choice but to remain separated for five years before she could legally divorce. The judiciary involved gave a damming judgment on the current divorce system and called on the government to bring it up to date.
The problem with the current legislation is not just limited to this one case – it is actually very rare for a spouse to contest a divorce. The main fact that people rely on is that of unreasonable behavior, meaning married couples are forced to draw up negative events of the past in order to ensure that their divorce goes through; when the reality is that their marriage has simply broken down and they want to move on with their lives. This often creates unnecessary confrontation and if there are children involved then they are often the ones who feel it most.
What are the government doing now regarding divorce?
The justice secretary, David Gauke, is expected to launch a public debate on proposals to revamp the current legislation. Earlier this year, he said he was “increasingly persuaded … that what we have at the moment creates more antagonism than we really need”.
Nigel Shepherd, a former chair of Resolution, said the news “has the potential to be a landmark moment for divorce law in England and Wales. For far too long, couples have been forced into needless acrimony and conflict in order to satisfy an outdated legal requirement.”
Watch this space on changes to the divorce system!
The upcoming consultation is something that we will be keeping a close eye on here at Jordans. Of course, a no-fault divorce system will not mean that all divorces will run without acrimony. Often there are complex financial matters to be dealt with, or arguments over children, which Jordans have the experience and expertise to assist clients with. We also offer Mediation for couples who wish to try and resolve any disputes that they have away from the court process.
If you need assistance with any family law matter or would like to enquire about Mediation then call us on 01924 387110 to speak to one of our specialists today.