No-fault divorce law change highlights pre-nup importance

No-fault divorce law change highlights pre-nup importance
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The laws on divorce are changing. 

Currently, in order to obtain a divorce a spouse must persuade a court that their marriage has broken down irretrievably, and provide one or more of the following 5 reasons (also known as ‘facts’): 

  • adultery;
  • unreasonable behaviour;
  • separation by consent for two years;
  • separation for five years; or
  • desertion.

To avoid having to wait two or five years most divorce petitions are based upon one of the fault-based provisions, and of these unreasonable behaviour is the most commonly given reason (the other party has behaved in such a manner that you cannot reasonably be expected to live with them). 

When drafting a behaviour petition a solicitor must strike a fine line between evidencing sufficient behaviour to persuade a judge that the marriage has in fact broken down and avoiding particulars of behaviour that are likely to send the other party into orbit.

It does not require much imagination to envisage the unfiltered list of complaints a family lawyer can be presented with when asking a party to provide examples of their spouse's unreasonable behaviour.

It can also be a lengthy and arduous task to distil these into something more palatable. When possible, divorce petitions are drafted in an anodyne manner and tend to include mundane examples such as one party working too hard or not spending enough time with the family – in other words allegations that should not cause the other party to take offence. 

Inevitably, some petitions have the effect of poisoning relations between the parties, but equally some people need the cathartic process of committing to paper what they have been subjected to in the marriage when bringing it to an end. The emanating sideshow can, however, have the unfortunate knock-on effect of making it harder to settle the truly important issues, namely arrangements for the children and the division of finances.

Owens v Owens

There have, perhaps surprisingly in this day and age, been instances where the courts have decided that the content of a divorce petition is insufficient to satisfy the criteria and have refused to grant a divorce. This most famously occurred in the case of Owens v Owens in which my colleague, Simon Beccle, acted for Mrs Owens.

She was denied a divorce despite providing 27 examples of what she considered to be unreasonable behaviour on the part of Mr Owens and living apart from her husband. 

Many had enormous sympathy for Mrs Owens who, despite two appeals (in 2017 and 2018), was essentially forced to remain in a loveless marriage against her wishes. The decision was a clear example of the court being out of kilter with society and the judgment lit the fuse under the long-standing campaign for a change in the law.