NEWS FLASH : The blame gameā€¦is it time to move to no fault divorce

In Owens v Owens [2017] EWCA Civ 182 the Court of Appeal has refused a wife’s appeal on the grounds of her husband's unreasonable behaviour.

The parties married in 1978 and separated in 2015. They had two children. The wife petitioned for divorce on the grounds that the marriage had broken down and that her husband "has behaved in such a way that [she] cannot reasonably be expected to live with [him]” (paragraph 1). The husband contested her application.

Sitting in the Central Family Court, His Honour Judge Tolson QC considered “"that the allegations of alleged unreasonable behaviour in this petition – all of them – are at best flimsy. I would not have found unreasonable behaviour on the wife's pleaded case. As it is, having heard both parties give evidence, I am satisfied that the wife has exaggerated the context and seriousness of the allegations to a significant extent. They are all at most minor altercations of a kind to be expected in a marriage. Some are not even that” (paragraph 46). The wife appealed.

The matter came before Sir James Munby, Lady Justice Hallett and Lady Justice Macur. The President stated that “Mr. Marshall complains that the effect of Judge Tolson's judgment is to leave the wife in a wretched predicament, feeling, as she put it in her witness statement, unloved, isolated and alone, and locked into a loveless and desperately unhappy marriage which, as the judge correctly found, has, in fact if not in law, irretrievably broken down” (paragraph 83).

However despite such marriage, the wife’s appeal was refused. The President considered that “the simple fact, to speak plainly, is that in this respect the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty. The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 Act but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of section 1(2)(b). It is ironic that collusion, which until the doctrine was abolished by section 9 of the 1969 Act was a bar to a decree, is now the very foundation of countless petitions and decrees” (paragraph 94).

Lady Justice Hallett confirmed that she had come to the conclusion “with no enthusiasm whatsoever” (paragraph 99) and urged “the husband to reconsider his position. On any view, the marriage is over. I can only hope that he will relent and consent to a divorce on the grounds the parties have lived apart for a continuous period of two years, rather than force his wife to wait until five years have elapsed” (paragraph 102).

 It remains to be seen whether the case will progress to the Supreme Court. However, the decision has clearly raised the question of a change in the law and whether it reflects modern day realities.

Has the time now come for Parliament to end the blame game?