Is Fault Based Divorce Still Alive and Well?

8 Aug 2018

For many years various bodies have lobbied the Governments of the day suggesting that fault based divorce should be abandoned and replaced with a “no fault” divorce process.  This proposition has never been popular with the Parliamentary Parties on the basis that simplifying the divorce process would undermine the sanctity and solemnity of the marriage vows and would erode family life. In the modern world where many more people are choosing not to marry in the first place, this has to be an outdated view.

In response to this refusal to change the law, practitioners and others have done their part to try and keep to a minimum allegations of blame in the divorce petition. Indeed this has been the guidance of the Law Society.

This makes very interesting reading for the case of Mr and Mrs Owen that has just been heard by the Supreme Court. In this case, Mrs Owen sought a divorce from Mr Owen based upon his unreasonable behaviour and issued divorce proceedings. Mr Owens opposed the divorce and denied the allegations of unreasonable behaviour.

The Supreme Court analysed and accepted the three stage test that must be applied for a behaviour Petition to be proven. (1) By reference to the allegation in the Petition, to determine what the Respondent did or did not do. (2) To assess the effect of this behaviour upon the Petitioner bearing in mind the personality and disposition of the Petitioner and all the circumstances in which it occurred. (3) To evaluate whether as a result of the behaviour and in the light of the effect upon the Petitioner it is unreasonable to expect the Petitioner to continue living with the Respondent.

In this case, Mrs Owen failed to prove her Petition and her divorce failed although the three judges had marginally different views as to why Mrs Owens’ case failed.

Two main points arise. Firstly, there is likelihood that the divorce courts will be sensitive for a while to behaviour petitions which “lack beef” as it was put by the Courts, in particular when defended by the Respondent. Many people these days prepare their own divorce petitions. If in doubt, seek expert legal advice.

Secondly, the Judges were all clear that parliament might like to re-visit the law on blame based divorce and whether it should still be a requirement to dissolve a marriage. The law makers can be very slow to effect change and, sadly, this is a situation in respect of which change is unlikely to happen for many years.