June 7, 2017
In the recently reported case of Owens v Owens, the Court of Appeal upheld the decision of a judge who made the original decision that Mrs Owens was not able to divorce Mr Owens. The allegations that she had made about Mr Owens’ behaviour were flimsy and fell short of what was necessary for the court to grant a divorce.
Current divorce laws are almost 50 years old, dating back to 1969, and the person applying for a divorce has to prove that their marriage has irretrievably broken down because of one or more of the following reasons:
· The other party has committed adultery
· The other party has behaved in such a way that the applicant cannot reasonably be expected to live with them
· The other party has deserted the applicant for a continuous period of at least two years immediately preceding the application;
· The couple have lived apart for a continuous period of at least two years immediately preceding the application and the responding party consents to the divorce
· The couple have lived apart for a continuous period of at least five years immediately preceding the application (where the responding party does not need to consent to the divorce)
Family lawyers recognise that the law is out of date and that a couple should be able to divorce before they have been separated for two years, without blaming the other, and increasing acrimony.
Couples are stuck with the present law for now, but if they use the collaborative process, the parties and their lawyers can work together to reach agreements and often discussions take place to agree the wording of the allegations of blame in advance of the papers going to court.
The person who is blamed has an input into the allegations made against them and can even suggest reasons to the other party where they believe they have behaved badly. When the applicant applies to the court, they know the other party has agreed to allow the divorce to proceed and, as long as there is some substance to the allegations, it is unlikely that the court would prevent the divorce from proceeding.
Owens v Owens was not a collaborative case. Mr Owens took exception to the allegations that Mrs Owens made against him and he argued against them in court. The judge found that they were flimsy and refused Mrs Owens a divorce. If the couple had engaged in the collaborative process, the outcome may have been very different.
The president of the family division of the court, Sir James Munby, was critical of the fact that the law is so out of date, but stated that as judges, their task is to state the law, not make the law.
It is hoped that Parliament changes the law in the not too distant future. Meanwhile, couples would be well advised to use the collaborative process to avoid an outcome such as in the Owens’ case.