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Could we be separating from fault-based divorce system?

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A recent divorce case has highlighted the question of whether the divorce legal system should be revolutionised, and consequently a new consultation has been launched to review the new proposals.  Sam Miles, Family Partner, discusses here what the consultation means for couples in the future who may look to divorce and explains how the right advice can make all the difference.

Can I divorce?

If you are considering divorce, currently, you are eligible to do so for any of the following reasons:

  • Adultery
  • Desertion
  • Unreasonable behaviour
  • Two year separation with both parties in agreement
  • Five year separation when there is disagreement to the divorce

Justice Secretary, David Gauke, has recently commented that this system creates “a degree of antagonism in an already difficult and sensitive set of circumstances.”  The rationale behind the move away from fault-based divorces is that a couple will not have made the decision to divorce on a whim; if there is no blame involved, they will have discussed it between themselves and realised that the only option they have is to divorce.  To then have to justify that decision, or provide the evidence that one party has caused the breakdown of the marriage through adultery for example, could add to the animosity between the two parties and impact on their ability to make any further decisions together for the sake of any children or financial arrangements. 

The current divorce rules have not been changed since 1973, and some industry bodies and legal professionals are now calling for a move towards the Scottish regime.  Here, a divorce is allowed after a one year separation with both parties in agreement or two years separation where there is disagreement. 

Can the Supreme Court refuse my divorce?

The case of Tini Owens has been used as supporting evidence as to why the fault-based system is potentially no longer working.  Mrs Owens sought a divorce from her husband of 40 years, claiming that he had behaved unreasonably.  The couple had been living separately since 2015, but Mr Owens did not agree a divorce; an outcome the Supreme Court agreed with stating that the current law restricted them from permitting a woman to divorce her husband after almost 40 years of marriage.  Mrs Owens will now remain married until a period of five years has lapsed, when she can then file for divorce.

Sam concludes, “This is an unfortunate situation for Mrs Owens; to be forced to stay in the marriage when it is clear it has come to an end.  A change in the law could assist situations like this in the future, but it is not only the law that impacts the success of your divorce but also the right legal advice from the outset.  While your divorce and the outcome will naturally depend on your own personal situation, the right advice will mean you understand the different options available to you and the next steps when faced with an obstacle.  There is no reason why a divorce should be either difficult or antagonistic in the current system, but it will be interesting to see the results of the consultation and whether we are in fact moving towards a shift in the legislation.”

For more information about your divorce or to find out how Sam or the Family team can help you, call the team on 023 8071 7431 or email


This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.