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The fact that this case has gone all the way to the Supreme Court reinforces the notion that the court believes that allegations cited by a petitioner of unreasonable behaviour must not be “flimsy” or “minor altercations of a kind to be expected in a marriage”. These were the criticisms given by the judge at first instance in the Owens case, even though Mrs Owens had cited 27 specific instances of unreasonable behaviour by her husband.
However, with the law as it stands, the Supreme Court is unlikely to overturn the decision of the lower courts in this case, since as Baroness Hale told Resolution in April 2018, “it is not the job of the courts to legislate – only Parliament can do that.”
The simple fact of being in an unhappy marriage is not a good enough reason to be granted a divorce under the current law. This has led to calls for the law to be updated, since the legislation which gives the courts the power to grant a divorce dates from the 1970s. Some – including the Law Commission and Resolution - argue that society has changed since then and therefore the law requires updating.
Family lawyers are therefore left in the precarious position of having to balance allegations being sufficient to meet legal requirements, with at the same time following Resolution and Law Society guidelines which encourage allegations to be kept to the bare minimum.
There is therefore a call for a ‘no-fault divorce’ to be introduced, in an attempt to avoid the hostility that inevitably comes from citing details of unreasonable behaviour by the spouse, or alternatively alleging adultery, which doesn’t promote the idea of attempting to save a marriage.
A no-fault divorce would move the process away from a court-based exercise where the allegations of unreasonable behaviour are reviewed by a judge (who has the ability to reject the petition as happened in the Owens case), to essentially an administrative process. There are suggestions of making the entire current process online, however it would be difficult to see how allegations of unreasonable behaviour could be scrutinised using an online system and who would ultimately make the decision whether or not the divorce should be granted.
An online system would, however, be able to deal with no-fault divorces as parties would no longer have to justify why the marriage has broken down. A no-fault divorce encourages a move away from the culture of placing blame on one of the spouses for the failure of the marriage. It is hoped that a no-fault divorce would encourage a more amicable relationship between the parties going forward.