The divorce system in England and Wales has come under fire after a high-profile divorce petition was once again denied, leaving a couple trapped in a loveless marriage.

The only current ground for a divorce in England and Wales is irretrievable breakdown of marriage, which can be proved by one of five facts. Here, David Connor explores the case for no-fault divorce.

The grounds for divorce

The two immediate grounds are adultery and unreasonable behaviour, while the other grounds comprise a period of separation with or without consent. Parties can divorce on a no-fault basis by consent alone as long as both parties agree after a period of separation for two years.

Where one party has deserted the other for a continuous period of two years, then a divorce can be applied for.  Finally, after five years separation, whether or not the other spouse consents, the petitioning party is entitled to a divorce.

The Owens case

In the case of Tini Owens, the Supreme Court ruled that she must remain married to her husband as he will not consent to a divorce. Mrs Owens issued a petition based upon allegations of unreasonable behaviour, however Mr Owens defended that petition and argued that he did not accept the grounds stated met the test required by law.

The test

Many divorce petitions pass through the courts on an undefended basis. One party alleges unreasonable behaviour and the other party does not lodge a defence to these.

Often a way forward is agreed and therefore the allegations are not particularly contested. The reasons for this are that often allegations of behaviour have little impact upon financial matters or matters concerning the children. Parties can therefore often reach an agreement accepting that the marriage has broken down even though they may not necessarily agree with each other on the precise grounds quoted in the petition.

It allows for petitions to be drawn in a way that causes as little animosity as possible and keeps allegations to the minimum required and phrased in as conciliatory a manner as is possible.  It can reduce tensions between divorcing couples and help the progress run in a more smooth and amicable fashion.

Things like verbal abuse, violence, failure to give emotional or financial support, lack of affection, excessive drinking or drug taking are often cited within petitions. For a petition based upon unreasonable behaviour to succeed, there must be sufficient allegations to pass the test. However, just being bored or having drifted apart is not enough under this ground.

Trapped in a loveless marriage

In the Owens case, Mrs Owens was faced with having to petition on the grounds of unreasonable behaviour because her husband did not accept the marriage had broken down and felt that there was a chance they would get back together. The Supreme Court has however looked at the allegations made by Tini Owens and decided they were flimsy and exaggerated, so upheld the previous rulings of the lower courts.

Mr Owens would also not give consent to a petition proceeding on the basis that at some point they would have been separated for a period of two years. This means that the only option available for Mrs Owens is to petition her husband after they have been separated for five years in 2020.

Outdated divorce laws

It is highly unsatisfactory and in the judgement Lady Hale said it was a very troubling case, but the judges could not change the law. What this means is that those locked in a loveless marriage may have to wait for five years separation before a divorce is available.

Many campaigners believe that the current law is outdated and not in line with current social thinking. They say it should be possible to have a no-fault divorce which allows an individual to free themselves from a marriage which is clearly over. If parliament fails to overhaul the current law, we will continue to see extremely unhappy individuals who cannot free themselves from a loveless marriage until the expiration of five years from the date of separation.

For further advice on divorce, call David Connor on 01706 225621, or email him at David.Connor@whnsolicitors.co.uk