In what many would view as a rather draconian process, the sole ground for divorce in England and Wales is, and has been for almost 50 years, that the marriage has broken down irretrievably. The irretrievable breakdown of the marriage has to then be established by one of five facts - adultery, “behaviour”, desertion for two years, separation for two years with consent of the respondent and separation for five years where there is no consent. The question is what recourse there is for individuals who cannot rely on the above factors i.e. partners who have merely drifted apart and now wish to live their lives separately.
It was thought that the case of Owens v Owens  UKSC 41 may have led to an answer to the above question and many lawyers and clients alike awaited the Supreme Court decision which was given this summer. In this case, Mrs Owens’s application for divorce was not granted and she has to remain married to Mr. Owen until 2020. Many would argue the injustice of this decision as it is effectively forcing an individual to remain in a marriage where both parties have acknowledged that the relationship has come to an end. It should be noted that the Supreme Court did dismiss the appeal ‘with reluctance’ and recognised that it had ‘uneasy feelings regarding the decision’
It seems clear that the law requires reform and needs to reflect and provide legal recourse to individuals according to the needs of the current society we live in and not that of 50 years ago. There is a lot of emphasis currently on alternative dispute resolution and encouragement to settle matters out of court in a conciliatory manner therefore being pushed to draft fault based divorce petition seems counterproductive.
It is understood that ‘the decision in Owens v Owens  UKSC 41 has strengthened calls within the family law community for law reform to introduce no-fault divorce’. Here’s hoping that some form of change will be implemented by Parliament without much more delay.
There in an ongoing Government Consultation in respect of the reform of the legal requirements for divorce which is open until 10th December 2018. If you would like to express your views please visit https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/ and complete the online survey. For further information you may also wish to view http://www.resolution.org.uk/landing-three-cols.asp?page_id=1330 for updates and ongoing awareness.
The family department at ITN Solicitors will continue to keep you updated of developments in this area of law.
If you would like to discuss this article or require advice and information on any aspect of Family Law please contact Mitali Zakaria, Linda Lusingu or Somia Siddiq at ITN Solicitors.
Article written by Priyanka Chakravarty