26 October 2018

No fault divorce: Is time up on the blame game?

Jennifer Dickson
Senior associate | UK

The divorce of Mr and Mrs Owens reached the Supreme Court in May this year, fuelling the debate about whether divorce law in England and Wales is outdated and needs to be reformed.

Mrs Owens, who is in her late 60s and has been married to Mr Owens (aged 80) for 40 years, found herself unable to get divorced in the wake of her husband’s refusal to agree that the marriage had broken down irretrievably. According to the judge who heard the case, Mrs Owens failed to prove that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him.

Marriage breakdown

Should one person’s desire to divorce be enough to end a marriage? Not according to English law – that individual has to show that the marriage has broken down irretrievably, supported by one of five facts: (a) the other’s adultery, (b) the other’s behaviour being such that it would be unreasonable to expect the petitioner to live with him or her, © desertion by the other, (d) separation for two years with the other’s consent or (e) separation for five years (no agreement needed).

Behaviour petitions are the catch all – if there has been no adultery by the other spouse, and two years has not lapsed (or there is no consent to a petition based on two years’ separation), a behaviour petition is all that is available.

Every marriage is different and the reasons for a marriage breaking down are complex and unique to that couple. Family lawyers routinely reassure clients that the content of a behaviour petition rarely – if ever – captures the actual reasons for the breakdown of the marriage. It is just a means to an end and has no bearing on the financial part of the case.

How could just a few short paragraphs do justice to the complex reasons for a relationship deteriorating? The issues involved will always be far more complex and as the Court described in Owens’, the reason for the breakdown is likely to be ‘the cumulative effect of a great many small incidents…over a period of time’.

Court’s assessment

In determining whether the criteria for a behaviour petition has been fulfilled, the Court must perform a three stage exercise:

1. conduct a finding of fact about the respondent’s behaviour;
2. consider the effect of that behaviour on this petitioner; and
3. decide whether it would be unreasonable to expect the petitioner to continue living with the respondent in light 1 and 2, above.

The assessment of a behaviour petition is an objective test, but there is an element of subjectivity: the impact on that particular petitioner is also a factor, and you take the petitioner as you find her – akin to the ‘thin skull’ rule in common law.

Defended divorces

Defended divorces are scarce, and fully contested hearings very rare (0.015% of divorce petitions in 2016 reached that stage). The determination of those few cases that fight all the way will be heard in open court – so the world and his wife (or husband) can hear the airing of a couple’s dirty laundry. One of the mistakes the Supreme Court considered Mrs Owens had made in preparing her case was not to call any witnesses to corroborate her description of her husband’s behaviour. But who wants to drag friends in to testify in open court about a couple’s deteriorating marriage?

The two main takeaways from the Supreme Court’s judgment are:

1. Causation

The fact that has to be proven for a judge to grant a decree nisi must support the irretrievable breakdown, but does not need to be the cause of the marriage breakdown.

2. Unreasonable behaviour

It is not the behaviour itself which has to be unreasonable, but the expectation that the petitioner should continue living with the respondent in the light of his/her behaviour.


Mr and Mrs Owens brought the Supreme Court the paradigm test case that Resolution had been waiting for, to highlight how the law needs to change. The Supreme Court did not disagree, expressly suggesting that Parliament may wish to consider whether to replace the current law: a law which seems to require Mrs Owens now to wait until February 2020 (when they will have been separated for five years) before recommencing divorce proceedings.

Will Mrs Owens get her divorce before a change in the law? The government has now promised a consultation on ‘no fault divorce’, so watch this space.

Jennifer Dickson Senior associate | London

Category: Article