The case of Tini Owens and her husband, Hugh, hit the headlines recently after the appeal courts refused to allow Mrs Owens a divorce based on his alleged behaviour.
The case surprised both the legal fraternity and the general public. Generally, divorce petitions are not defended as, by the time a marriage has broken down, both parties are unhappy and just want to get out of the situation without the cost and stress of lengthy court proceedings.
Currently there is no ‘no fault divorce’ as such. The law allows a divorce only if one of these five facts is proved:
- Adultery
- Unreasonable behaviour
- 2 years separation with the other party’s consent
- 5 years separation
- Desertion
In the Owens’ case, Mr Owens objected to a divorce based on allegations that he had behaved unreasonably and, unusually, he defended the case. Having considered the evidence, the judges upheld his objection, leaving Mrs Owens without her divorce and having to wait until she and her husband have been separated for five years.
The current divorce law was enacted in 1973 and has changed little since. The judges in the case of Owens felt uneasy about the decision to reject Mrs Owens’ divorce petition, but their hands were tied by the law as it stands and they called for Government to reform the current divorce law and to move towards a no-fault divorce.
What constitutes evidence?
Putting together a case for divorce requires evidence and, while the parties involved may disagree, the evidence offered has to be sufficient for the judge in the family court to see that the marriage has broken down.
Even though in the Owen’s case, Mrs Owens offered 27 instances of unreasonable behaviour, this was not considered sufficient evidence by the judge. If Mr Owens had agreed to the divorce it is likely it would have been granted, but both parties must want the divorce.
When one party opposes the divorce, the evidence must be strong enough to persuade the judge that the situation is beyond retrieval. Often the evidence is based upon one person’s word against the other, and is difficult to prove.
Sometimes the couple can agree the form of words of a divorce petition before it is sent to the court so that defended proceedings can be avoided and they can focus on more important issues such as finances and arrangements for their children. However, the petitioner must still make ‘allegations’ against their spouse and this can often inflame the situation.
A no-fault divorce would take the sting out of the situation and encourage co-operation rather than conflict.
What about children?
When there is a divorce that is based on adultery or unreasonable behaviour, it’s hard to keep the facts from older children. Hearing about the worst behaviour of their parents isn’t the best thing for them.
A no-fault divorce would allow a marriage to be dissolved without dragging lots of ‘dirty washing’ through the courts.
Time for change
The current situation where the parties are required to stack up evidence against each other – but also encouraged to use mediation to promote agreement – is simply contradictory.
It’s to be hoped that the government will review the divorce laws and make changes that will work for 21st century partnerships. Until then the 1973 law continues in force and couples will have to be careful about how any divorce petitions are worded, to avoid problems through the courts.
For more information, this is the government divorce facts website.
If you want to discuss a potential divorce EJ Coombs offers a fixed fee consultation to explore your situation and give you a clear idea of where you stand.
