English divorce law currently forces one party to blame the other in order to convince the Court that their marriage is beyond repair and there are no prospects of a reconciliation.
As the law currently stands in England and Wales, a marriage is dissolved by a decree of divorce pronounced after one party has filed a divorce petition, which asserts the irretrievable breakdown of the marriage proved by one of five grounds. The Court cannot hold that a marriage has irretrievably broken down unless the petitioner satisfies the Court of one or more of the five facts which are:
a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
c) That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
d) That the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted (two years’ separation and consent);
e) That the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (five years’ separation).
Unless you want to wait either two or five years after separating to petition for divorce, one party must be blamed for the irretrievable breakdown of a marriage either by way of their unreasonable behaviour, adultery or desertion.
A Defended Divorce
A divorce can be stopped if either one party in the marriage does not accept that the relationship has broken down or does not agree that the grounds stated in the divorce petition are correct. This is called a defended divorce and these cases are incredibly rare in the UK. Most of the time, defending a divorce will be a costly exercise with the Courts being reluctant to force couples to remain married.
In addition, a divorce can be contested on the basis that the party who served the petition has no jurisdiction to bring a petition for divorce in this country. This might start a jurisdictional fight as to whether or not the petition is valid in the first place.
When a couple divorce, one person will begin the divorce proceedings by submitting a divorce petition to the Family Court. Before the divorce petition is submitted, a draft will often be sent to the other spouse. This provides the responding spouse with an opportunity to read through the petition. If the responding spouse does not agree with the wording of the statement or disputes a request for costs that has been made, then they can state this in writing before the formal divorce process begins.
One party may choose to defend a divorce in order to (i) delay the divorce and try to save the marriage; (2) submit their own petition – this can occur if the responding spouse believes that the reasons for the failure of the marriage are different from those stated by the petitioning spouse in their divorce petition; or (3) dispute the reasons given for the divorce in the petition – the responding spouse may wish to defend the divorce if they simply disagree with the reasons given in the divorce petition. For example, it may have been claimed that they were unfaithful or were guilty of domestic abuse, which they may dispute.
In order to defend a divorce, the Acknowledgement of Service must be completed and returned to the court that issued the divorce petition within 7 days stating the intention to defend the divorce petition. You will then have 21 days in which to file your defence.
Once a divorce petition becomes defended, the court will fix a case management hearing for the purpose of deciding how to progress the case. At the case management hearing, the court sets a procedure and timetable. The Court might decide that further action should be taken or they may request further evidence to support the reasons for divorce that have been stated in the divorce petition. The Court may also request further information and evidence from you to support your objection and the claims that you have made.
Supreme Court ruling in Owens v Owens (2018)
In the well-publicised case of Owens v Owens, the parties had been married for 40 years. Mrs Owens petitioned for divorce on the grounds of unreasonable behaviour and alleged that the marriage had broken down irretrievably and that Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him. Mr Owens defended the petition on the basis that his behaviour had not been unreasonable in the context of their marriage.
The Judge at first instance said that Mrs Owens had exaggerated the context and seriousness of the allegations and that they were at of a kind to be expected in a marriage.
Mrs Owens appealed to the Court of Appeal which considered the question – has Mr Owens behaved in such a way that Mrs Owens cannot be expected to live with Mr Owens. The Court of Appeal was satisfied that the judge at first instance had correctly applied the law and Mrs Owens appeal was dismissed.
Mrs Owens appealed the decision again and in July 2018, the Supreme Court found in the husband’s favour and dismissed Mrs Owens appeal. Whilst the Supreme Court judges felt unneasy about the decision they recognised that their role was only to interpret and apply the law. As the law currently stands, the petitioner is required to find fault in the respondent and on this occasion, Mrs Owens had failed to persuade the Court that Mr Owens behaviour was unreasonable enough. The effect of the decision was that Mrs Owens had to wait until 2020 for a divorce when she will be able to petition on the basis of five years separation without Mr Owen’s consent.
The decision in Owens v Owens highlighted the need for Parliament to seriously reconsider the long-standing campaign for ‘no fault divorce’ and amend the statute accordingly. Until such time, the risk remains that one party is forced to use more extreme examples of unreasonable behaviour in order to cross the threshold, thereby unnecessarily increasing animosity between the parties or that a party remains trapped in a loveless marriage long after they believe it has broken down.
In summary, as the law currently stands it is possible for one party to stop a divorce in the UK. However, the Divorce, Dissolution and Separation Bill which entered Parliament on 7 January 2020 is currently being considered. The proposed new law removes the blame game by allowing one spouse or the couple jointly to make a statement of irretrievable breakdown. The bill removes the possibility to contest a divorce, but all divorce applications could still be challenged on the bases of jurisdiction, the legal validity of marriage, fraud or coercion and procedural compliance. We currently await the decision from Parliament on the outcome of this proposed new law.