No fault divorce: Tini Owens and her unhappy marriage

Five Judges of England’s highest Court, the Supreme Court, will decide whether Tini Owens can finally divorce her husband.

Mrs Owens had an affair but despite this her husband claims that his marriage to her has not irretrievably broken down and that they have a “few years” left to enjoy together. Tini Owens considers her marriage loveless. She has already failed to convince two lower Courts that she should be able to divorce her husband.

The case is unusual as most divorces proceed uncontested with both parties accepting that whatever the reasons given, the marriage has broken down irretrievably and the legal costs of arguing otherwise are unaffordable for most. Research published in the House of Commons Briefing Paper about No Fault Divorce in December 2017 evidences that most divorces in England and Wales “blame” one person for the breakdown of the marriage and that of these “unreasonable behaviour” is the most common basis for a divorce.

There is no doubt that the primary divorce legislation is outdated and has been amended and supplemented so many times that many commentators believe it should simply be scrapped. Society has changed a great deal since 1973 when the legislation became effective.

The law currently states that you have to have been married for one year to divorce. You must also prove on the balance of probabilities that your marriage has broken down irretrievably – this should be supported by your circumstances falling into one of five categories:

• Your husband or wife has committed adultery and you find it intolerable to live with him/her;
• Your husband or wife has behaved in a way that you cannot reasonably be expected to live with him/her;
• Your husband or wife has deserted you for a continuous period of 2 years;
• You have lived apart for a continuous period of 2 years and your husband/wife agrees to being divorced, or
• You have lived apart for a continuous period of at least 5 years.

But the idea of reform of the divorce legislation is not a new concept. The Conservative Government of the late 1990s decided to have a go at introducing ‘no fault divorce’. The idea was that couples who wanted a divorce had to attend information meetings which were partly aimed at persuading them to reconcile. After a series of pilot schemes, the Government concluded the idea was unworkable and Part 2 was repealed. There is a nervousness that the divorce rate will increase as it has in other countries where divorce is cheap and easily obtainable on a no fault basis. 

The Supreme Court’s decision about whether or not Mrs Owens can have her divorce will be published later this year.

If you’d like to discuss divorce or any of the issues outlined above with our Family Law experts, please call 0113 201 4902 or email family.law@emsleys.co.uk.