CHRISTMAS OFFER Subscribe to Surrey Life today CLICK HERE

No-fault clause: Why getting a divorce is not always easy

PUBLISHED: 14:15 19 July 2017

Archant

In the absence of a no-fault clause getting a divorce is not always easy

George Bernard Shaw is reputed to have said “Marriage is an alliance entered into by a man who can’t sleep with the window open and a woman who can’t sleep with the window shut”. For some spouses, such issues are part and parcel of a normal marriage but for those who have been married a long time, there can be any number of reasons why a husband or wife may decide that they no longer wish to be together.

There are about 110,000 divorces in this country every year, and that is about 600 people who get divorced every day. Every divorce is based on an irretrievable marriage breakdown but this has to be proved by one of five different facts. Three of those facts are time related, including being separated for two years for a divorce by consent or being separated for five years with no consent required. However if a couple want to start divorce proceedings within the two year period, then they must use what is called a ‘fault based ground’, which means either citing the other party’s unreasonable behaviour or their adultery within the last six months.

The divorce legislation was brought into statute in 1973 and is now therefore over 43 years old and society has changed a lot in that time. Just about three quarters of all divorces today are based on a fault ground, with the majority being based on the other spouse’s unreasonable behaviour. The divorce itself can be a relatively simple paper process and the court costs for divorce proceedings from start to finish are £550.00. The government are also making the process easier by encouraging the filing of online petitions and simplifying the documentation.

The process however, has not been so straightforward, simple or inexpensive for Mrs Tini Owens, who at a recent court of appeal hearing lost her case to be divorced from her husband on the basis of his unreasonable behaviour. In this high profile case, which has received significant press attention, Hugh Owens decided - regardless of the fact they had been separated since February 2015 - that the marriage had not broken down, or at least not on the basis of the facts set out by Mrs Owens. These included not providing her with love, attention and affection and there being frequent and distressing arguments.

Unusually, Mr Owens decided to defend the divorce proceedings and perhaps even more unusually, the judge in London agreed with him, despite the amended petition containing 27 specific allegations of the husband’s unreasonable behaviour. The judge complained that the petition was hopeless, was scraping the barrel and lacked beef. He thought that the wife had exaggerated the context and gravity of the husband’s behaviour and ordered substantial costs against her.

Regrettably the Court of Appeal’s hands were tied because of the limitations in what they could do on appeal. Handing down his judgment, Sir James Munby asked himself the question as to whether the law was in a remotely satisfactory condition. He clearly thought not when he later noted that it was hypocritical when spouses and their family lawyers still have to use fault based grounds to progress divorces.

It is against most specialist family lawyers’ code of conduct to be inflammatory and to encourage conflict and confrontation, but this essentially seems to be the outcome of the Owens’ case. Mrs Owens has now taken her divorce to the Supreme Court and it is to be hoped that reason will prevail, and that she will not have to wait until she is 70 years old and there has been a five year separation before she can divorce and sort out the finances.

Many other countries including America and Australia have no fault divorce and it is surely time that England follows suit. As Neil Sedaka sang in 1975, breaking up is hard to do. And as this case proves, for some the current law can make it even harder.

For advice on the full range of family law issues please contact the Guildford office of Penningtons Manches LLP on 01483 791800 or visit penningtons.co.uk

More from Surrey Life

10:51

Wrap up in your favourite coat and scarf, grab your sparklers and a warming drink, and enjoy one of these fantastic firework displays taking place in Surrey for bonfire night

Read more

Home to outstanding architecture, ambitious community projects and arts ventures that are putting these villages firmly on the map, East and West Horsley are among our county’s most desirable addresses

Read more
10:43

Chertsey’s best-kept secret, the Great Cockcrow Railway, steamed into a half-century this year

Read more

A taste of Korea has swept into the beautiful market town of Godalming as Bada sets out its stall with a tapas-style fusion of seafood, traditional dishes and spice

Read more
Yesterday, 16:06

With friendship as the central theme in Adele Parks’ new book, Zoe Richards met up with the bestselling author and her publisher, Kate Mills, to find out how these two Surrey dwellers have discovered a successful working relationship, and become firm friends too

Read more
Yesterday, 11:37

Great things to do in Surrey this weekend: art exhibitions, walks, concerts, theatre, places to visit and other events and ideas.

Read more
Yesterday, 00:00

As the twilight falls, the magic begins… There’s something for everyone at Christmas at Kew – and we’re giving you the chance to win one of five family tickets for two adults and two children to the Preview Night of Christmas at Kew on Wednesday 21 November 2018

Read more
Friday, October 12, 2018

We round up 10 of the most beautiful photos of Surrey shared on Instagram this week…

Read more
Tuesday, October 9, 2018

Good table manners have long been a source of national pride but in this modern age of social media are our longstanding traditions being left behind? Rebecca Younger visits the stately Beaverbrook estate for a lesson in British etiquette

Read more
Tuesday, October 9, 2018

Whether you're looking for fine dining, pub grub or exotic dishes, eating out in Surrey has something for everyone. Here's our guide to the best local restaurants and pubs

Read more
Tuesday, October 9, 2018

The spookiest time of the year is fast approaching! We pick some of the best events to celebrate Halloween in Surrey

Read more
Tuesday, October 9, 2018

From well kept secrets, to chilled out locations, Redhill is a good spot for a bite to eat. We round up some of the best restaurants…

Read more
Monday, October 8, 2018

From October 11 to 14, the great and the good of professional golf will tee up at Walton Health Golf Club for the 2018 British Masters. We shine a spotlight on the club as it ends an extraordinary year

Read more
Tuesday, October 2, 2018

Lily James’ cinematic education has been overseen by a host of Hollywood’s most recognisable names; now, as she nears her 30th birthday, the Esher-born actress is looking to step out of her co-stars’ limelight and enjoy her leading role at the forefront of future British generations in Tinseltown

Read more

Newsletter Sign Up

Sign up to the following newsletters:

Sign up to receive our regular email newsletter

Our Privacy Policy

Topics of Interest


Follow us on Twitter


Like us on Facebook

Subscribe or buy a mag today

subscription ad

Local Business Directory

Property Search