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Whose fault is it anyway?

It’s time for the absurd fault-based divorce system to end, says Christopher Jackson

No one could accuse divorce law in England and Wales of moving too fast. The problem within family law — and one can see an emblem of this in the astonishing spectacle of chaos at our Family Division — is rather one of sclerosis than of excessive rapidity. But every now and then one wonders whether a tipping-point has been reached.

The recent case of Owens v Owens is a reminder of the presence of finger-pointing within our divorce system — and of the need for reform. Tini and Hugh Owens had been together for 37 years, and though Mrs Owens had come to feel trapped in the marriage, Mr Owens took a different view and sought to defend the divorce.

Giving the initial judgement, HHJ Tolson QC said: ‘…as the law stands, unhappiness, discontent, disillusionment are not facts which a petitioner can rely upon’. The Court of Appeal agreed, and rejected Mrs Owens’ appeal in late March.

The decision had nothing to do with the heartlessness of judges, and all to do with the archaic nature of the law, which still, in quasi-Victorian style, seeks to establish blame when a marriage breaks up. Why not get rid of this altogether, the argument runs, and let couples — and, most importantly, the children of divorcing parents — move on in an atmosphere of blamelessness?

In fact that’s exactly what 69 per cent of the  public want (according to a March 2017 YouGov poll), as do a series of heavyweight legal figures such as Sir James Munby, president of the Family Division, and Sir Paul Coleridge, chairman of the Marriage Foundation.

Nigel Shepherd, the chair of Resolution and head of family at Mills & Reeve, is another leading figure lobbying for change. ‘The argument has been won but the law hasn’t changed,’ he says. But he remains optimistic: ‘There is political agreement on both sides, and [as a result of Owens] the stars could align.’

Among top-flight lawyers Spear’s spoke to leading up to the Top 50 Family Law Index (published in issue 56), the no-fault issue was a regular gripe. But there was also widespread agreement that with Article 50 having been triggered, change is unlikely to be near the top of the government’s priorities, whoever is elected on June 8. Brexit might mean Brexit — but in the world of divorce law it might also mean ‘inaction’.

Christopher Jackson is Head of the Spear's Research Unit

For more information on who's who in the UK divorce scene, visit our Top 50 Family Lawyers Index here: http://www.spearswms.com/indices/