Can you Divorce By Agreement? What about Owens?

May 3, 2017 by Sue McArthur

Divorce by Agreement?

It would seem that divorce by agreement may be difficult given the recently reported case of Owens v Owens where the Court of Appeal upheld the original court decision that Mrs Owens was not able to divorce Mr Owens because the allegations that she had made about Mr Owens’ behaviour were flimsy and fell short of what was necessary for the Court to grant a divorce.

Current divorce laws are almost 50 years old, dating back to 1969 and the person applying for a divorce has to prove to the Court that their marriage has irretrievably broken down because of one or more of the following reasons, in short:

• Adultery by the other party;
• Behaviour by the other party that means it is no longer reasonable for them to live together;
• Desertion by the other party for a continuous period of at least 2 years ;
• Separation where the couple have lived apart for a continuous period of at least 2 years and the other party consents;
• Separation where the couple have lived apart for a continuous period of at least 5 years – no  consent required.

Therefore, a couple cannot divorce until they have been separated for at least 2 years, unless one party accuses the other of adultery or unreasonable behaviour.  It is not possible to apply for a divorce because you have grown apart, until you have lived separately for at least 2 years.

Such a requirement increases acrimony and often sours the relationship so it becomes difficult to make joint decisions regarding child arrangements and/or reach an agreement in relation to finances.

So how do you divorce by agreement?

The vast majority of family law solicitors recognise that the law is badly out of date and that a couple should be able to divorce, before they have been separated for 2 years, without blaming the other. Resolution, the family law organisation committed to the constructive resolution of family disputes has been campaigning for a change in the divorce law to a “no fault” system for many, many years .

There is, however, a way to minimise the fall out of a divorce based on blaming one party for adultery or unreasonable behaviour, and that is using the Collaborative Process.  In the Collaborative Process, the parties and their lawyers work together as a team to reach agreements that are fair to all and often discussions take place to agree the wording in a divorce petition so that the reasons for the divorce are effectively agreed between the parties in advance of the papers being sent to the Court.

In situations such as this, the person who is ‘blamed’ has had an input into the allegations that are made against them and, on some occasions, may even suggest reasons to the other party. So when the divorce papers go to court for issue both parties know that they agree to the divorce and as long as there is some substance to the allegations, it is unlikely that the Court would prevent the divorce from proceeding.

The Owens case was not a collaborative case and Mr Owens took exception to the allegations which Mrs Owens made against him, argued against them in Court and the Judge found that they were flimsy and refused Mrs Owens a divorce.  If the couple had engaged in the Collaborative Process, the outcome may have been very different.

The President of the Family Division of the Court, Sir James Munby, was critical of the fact that law is so out of date and required couples to blame each other or wait until they have lived separately for 2 years, but he stated that as Judges, their task is to state the law, not make the law.  It is to be hoped that Parliament sees sense and changes the law in the not too distant future, but meanwhile, couples would be well advised to use the Collaborative  Process to avoid an outcome such as in the Owens case.

Nicola Matthews – Hay and Kilner

Louise Masters – Sintons