BUSINESS - IRWIN MITCHELL
IRWIN MITCHELL NO FAULT DIVORCE
without consent. Both adultery and unreasonable behaviour are deemed to be “fault” based facts whereas the others are “no-fault”.
It is not possible for a couple to separate and to then be able to divorce using a “no-fault” divorce fact immediately. To enable someone to divorce straight away they need to say the other person is at fault.
Many couples approach their lawyers now with a view that a divorce should be granted immediately without any blame on either side – for instance because they have grown apart. Unfortunately, the law does not fit with that approach.
Clare Wiseman
The issue of “no-fault divorce” has been widely discussed by the public and lawyers alike for some time now. The recent highly publicised case of Owens v Owens has highlighted the problems which arise in relation to the divorce legislation as it is currently.
Mr and Mrs Owens received plenty of media coverage when Mrs Owens was not able to divorce her husband because the court said that her husband had not behaved unreasonably enough to cause the marriage to break down. Mr Owens did not want to divorce and refused to provide his agreement to the divorce.
The law currently states that there is one ground for divorce – that the marriage has irretrievably broken down – and to prove this, you have to rely on one of five facts: adultery, unreasonable behaviour, desertion (which is rarely used in practice), two years’ separation with consent and five years’ separation
Whilst it is usual for one party to think of some examples of unreasonable behaviour to include in a petition, which would allow the proceedings to start straight away, it can unnecessarily increase the hostility between the parties. The matrimonial law dealing with divorce dates back to 1973 and in light of the change to social attitudes since then many believe it is in need of updating. Many groups have lobbied parliament to change the law including Resolution (an organisation who many family lawyers are a part of and who are committed to the constructive resolution of family disputes) but to no avail to date.
The case of Owens, however, does highlight the need to ensure that a person thinks carefully about whether they can satisfy the unreasonable behaviour requirement and prove that it is for this reason that the marriage has broken down. If not, they leave themselves open to the risk that the court will decide that they are unable to divorce. Mrs Owens has been granted permission to appeal to the Supreme Court for them to decide on this issue and it is unclear as to the route the court will take; will they allow the divorce to proceed or will they continue to say the ground for divorce has not been made out. Either way, it is hoped that this case will prompt Parliament to reconsider the issue of no-fault divorce.
Couples who divorce also need to remember that the divorce itself does not resolve any financial claims they may have against each other. Those claims are available often years after the divorce has been finalised. Even when one of the couple believes everything was agreed at the time they could find themselves back in court years later dealing with historic financial claims, perhaps because they have then come into money or property they did not have before.
Legal advice should be obtained to ensure that cannot happen and the finances, as well as the divorce, are sorted out so everyone can rest easy that they will not find themselves in court many years later.
Separation and divorce is going to represent a significant change to you and your family. Irwin Mitchell Private Wealth has experience and expertise in all forms of family dispute resolution, we offer unrivalled guidance to help you plan appropriately and make the right decisions at the right time.
Contact Clare on DDI: 0121 214 5278 or Phone: 0370 1500 100 Extension: 5278 clare.wise-
man@irwinmitchell.com
For further information contact Gavin Faber on 0121 203 5366, or 0370 1500 100 Extension: 5366, or by email
gavin.faber@irwinmitchell.com
Contact Clare on DDI: 0121 214 5278 or Phone: 0370 1500 100 Extension: 5278
clare.wiseman@irwinmitchell.com / 63
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