When the Supreme Court upheld the Court of Appeal decision that Tini Owens could not be granted a divorce because she failed to meet the legal test that her marriage had broken down irretrievably, the judges invited "Parliament to consider replacing a law which denies Mrs Owens a divorce in the present circumstances".

A defended divorce petition is a rare beast; defending it all the way to the highest court in the land is even rarer - indeed, Mrs Owens' case is the first of its kind to get that far. This unusual situation meant that Mrs Owens' examples of unreasonable behaviour were closely scrutinised in court and, as result, were found wanting. Mrs Owens has been left with no choice but to abide by the five-year separation rule before she can divorce her husband.

'Unreasonable behaviour' leads to false allegations

It has been an accepted principle in family law that when citing instances of unreasonable behaviour (the most common 'fact' for proving irretrievable breakdown of marriage) the individuals concerned and their lawyers do nothing to inflame an already emotional situation, a position endorsed by Resolution and the Law Society. This tends to result in a list of fairly anodyne examples designed to comply with the legal requirements but not to escalate animosity, particularly if children are involved. Such a list has never been tested in court to the extent it has been in Owens v Owens.

In Owens v Owens, the supporting evidence to prove 'unreasonable behaviour' was revealed to be no more than a fudge. A research study, funded by the Nuffield Foundation, found that this to be a common state of affairs: 'unreasonable behaviour' was the real reason in only 29% of cases according to respondents and in only 65% of cases reported by petitioners. In other words, in order to secure a divorce within an acceptable timeframe, some people felt they had no choice other than to make allegations that had a precarious relationship with the truth.

No-fault divorce part of Family Law Act 1996

Of course, what we have forgotten is that the government has already been here: the Family Law Act 1996 provided for no-fault divorce on condition that couples took part in compulsory information meetings with the intention of encouraging reconciliation. The provisions were never enacted and in 2001 Parliament repealed the legislation on the advice of Lord Irvine, the then Lord Chancellor, after research led the government to conclude that the provisions in the act were 'unworkable'. One of the problems was the difficulty of reconciling the desire to reduce acrimony in a divorce with the desire to save 'saveable' marriages. Many MPs were unhappy with the prospect of introducing no-fault divorce, believing that it would encourage more people to divorce. Thus the government was forced to accept a number of amendments with the result that 'an essentially simple and elegant legislative scheme became exceedingly complex.'

Momentum for change is building

Although no-fault divorce has been regularly promoted for several years by both professional and lay bodies and senior members of the judiciary, the Department for Justice has repeatedly confirmed that it was not intending to review the current law. Nonetheless, momentum for change has been building: a report by Professor Liz Trinder of Exeter University in October 2017 concluded that the law should be reformed 'to address the mismatch between law and practice' and the Times newspaper has thrown its editorial weight behind its 'Family Matters' campaign calling for the law to be modernised. The widely reported concerns of the Supreme Court judges in Owens v Owens may have constituted the final straw in encouraging a change of heart as David Gauke, the Justice Secretary, announced a consultation on introducing no-fault divorce earlier this month.

A civilised divorce process

Various studies have concluded that no-fault divorce will, ultimately, not accelerate the divorce rate and will help to reduce conflict and allow people to move on - as Resolution's Manifesto for Family Law notes: 'a civilised society deserves a civilised divorce process.' The Family Mediation Task Force is equally in favour, observing that 'allegations [of unreasonable behaviour] drive the receiving party into even greater hostility and away from mediation. We join all those...who have urged the government now to abolish fault-based divorce.' Along with many other family law practitioners, I welcome the consultation (which is still being finalised) and hope that this time round Parliament will recognise that reform is essential and that it is time the divorce laws of England and Wales caught up with those in most Western countries - including Scotland.

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