The recent Supreme Court judgement in the case of Owens v Owens highlights once again the need for a sixth option in divorce cases – that of no-fault divorce when a marriage has broken down for reasons that do not satisfy any of the five options currently available.
At present the five ways to divorce a spouse include:
- Separation for at least five years, with or without agreement.
- Separation for at least two years, with your spouse’s agreement.
- Desertion by your spouse for at least two years in the past 2.5 years.
- Adultery, unless you lived together for over six months after you found out.
- Unreasonable behaviour
In the case of Tini Owens, who petitioned for divorce from her husband Hugh, the claim was one of unreasonable behaviour.
This is common for obvious reasons – without evidence of adultery, it is the only option that does not require at least two years of separation, which can mean living in the same house but sleeping in separate rooms or living completely apart.
But unusually in this case, Hugh Owens contested the divorce, arguing that in his opinion, the marriage was largely successful.
The Supreme Court Owens divorce verdict
Mrs Owens’ divorce petition, which was based on 27 isolated incidents of argumentative and demeaning behaviour, was rejected by the divorce court, and a subsequent appeal was also rejected by the Court of Appeal.
On July 25th 2018 the Supreme Court also rejected a further appeal – although not without misgivings, as the panel of two Lady and three Lord Justices stated that “the majority invite Parliament to consider replacing a law which denies Mrs Owens a divorce in the present circumstances”.
England needs no-fault divorce
With no current option for no-fault divorce, the ‘quick’ options of adultery and unreasonable behaviour account for the majority of divorces under English law – around 60% of the total, according to family law organisation Resolution.
Yet north of the border in Scotland, where the rules on divorce are somewhat broader, only 6% of couples separate via a claim of adultery or unreasonable behaviour.
This may be an indication that many of the English couples who do so exaggerate or even falsify their claims in order to divorce without a two-year separation period.
How mediation can help you divorce without blame
Mediation cannot change English divorce law – only Parliament can do that – but it can help to keep things civil whether you choose to divorce via unreasonable behaviour, adultery, or a separation period.
A mediator can keep discussions moving forwards during your separation, as well as helping you to agree on who, if anyone, will take the blame for the breakdown of your marriage.
Crucially this can include agreeing that the party who takes the blame will not be unfairly treated in the division of finances, assets, residence and visitation rights – so that although no-fault divorce is currently not an option under English divorce law, neither party in your divorce needs to suffer because of it.