The recent case of Tini Owens has again brought the Matrimonial Causes Act 1973 and “no-fault” divorce back into the headlines. Mrs Owens was told by a court that her Divorce Petition based on her husband’s “unreasonable behaviour” did not meet the requisite criteria for a divorce. Whilst the determination of the Court of Appeal is awaited, this case provides food for thought about the current law on divorce.

In England and Wales, the Matrimonial Causes Act 1973 states that a divorce can only be obtained if the marriage has broken down irretrievably and one of five grounds set out in Section 1(2) of the Matrimonial Causes Act 1973 has been met, namely:

  1. Adultery;
  2. Unreasonable behaviour;
  3. Desertion;
  4. Two years’ separation with consent; or
  5. Five years’ separation.

The only way to apply for a divorce within 2 years of the marital breakdown is to petition based on the other party’s adultery or unreasonable behaviour. If there has been no adultery, then the Petition has to be based on either a period of separation or the “unreasonable behaviour” of one spouse. Examples of the “unreasonable behaviour” must be included within the Petition. Mrs Owens’ examples included that her husband “berated” her about the affair that she previously had and criticised her in front of their housekeeper.

Particulars of unreasonable behaviour can be drafted in a mild tone and agreed between the parties. The Respondent can choose to agree to a divorce but “not admit” the particulars of unreasonable behaviour cited. 99{ba3215b0bf35eaeb06be458b3396ffbfc50bb9db10c9ff1594dfc3875e90ea48} of divorce proceedings are undefended, as to defend the divorce generally increases the complexity, costs and animosity between parties. In some cases, however, the Respondent may choose to defend the proceedings in order to deny the allegations, request amendment to the Petition or challenge whether the criteria for a divorce has been met.

The legal test for “unreasonable behaviour” does not require the Petitioner to show that the unreasonable behaviour of the Respondent led to the irretrievable breakdown of the marriage. The question the Court asks to determine whether the unreasonable behaviour is sufficient to grant a divorce is as set out in Livingstone-Stallard v Livingstone-Stallard [1974] Fam 47:

“Would any right-thinking person come to the conclusion that this respondent has behaved in such a way that this petitioner cannot reasonably be expected to live with him or her, taking into account the whole of the circumstances and the characters and personalities of the parties?”

This looks at the nature of the Respondent’s alleged behaviour, the effect of this behaviour on the Petitioner and the background within the relationship. Should the Respondent defend the proceedings, the Court has to apply this test in order to determine whether the Petitioner has met the requisite criteria.
In the case of Tini Owens, the judge said that although Mrs Owens was unhappy in the marriage, her particulars of unreasonable behaviour did not meet this criteria and her request for a divorce was denied.

The Court of Appeal will now have to rule on this matter. If the matter is not found in Mrs Owens’ favour, then (unless Mr Owens consents to a divorce or Mrs Owens is able to issue a Divorce Petition either based on Mr Owens’ adultery or with particulars of unreasonable behaviour that meet the Court’s requirements) she will be unable to apply for a divorce until they have been separated for a period of 5 years.

This raises the question – when one party in a marriage no longer wishes to continue with the relationship and wants a divorce, should the Court be able to determine that they must remain in an unhappy marriage for a period of up to 5 years? And where both parties have come to the conclusion that the marriage is over, should they be forced to play the blame game and base the Petition on unreasonable behaviour or adultery or wait for a period of two years?

In November 2016, 150 Resolution members lobbied parliament for the introduction of a “no fault” divorce. “No fault” divorces are available in a number of jurisdictions across the world, using criteria such as “irreconcilable differences” to determine whether a divorce can be granted. In England and Wales, however, the government has confirmed that at present it does not intend to change the legislation governing divorce. Resolution have said that they will continue to raise awareness and lobby for a change in the law to enable couples to divorce in the most amicable way possible.

Within the current legal system in England and Wales, divorce does not always have to be acrimonious. As Resolution members at Paris Smith, we are committed to trying to resolve family matters in an amicable way where possible and we can provide you with any necessary support, advice and guidance in relation to your divorce/separation.