Divorce in the UK – when will it catch up with the rest of the world?

By Anne Marie Kelly – Director & Head of Family Law Department. Published 2 August 2018.

The recent Supreme Court decision Owens -v- Owens highlights the inadequate and outdated nature of the legislation governing Divorce in England and Wales and also within this jurisdiction.

Lord Justice Gillen has recently Chaired a Review of Civil and Family Justice in Northern Ireland and as part of this Review he consulted personally with a variety of legal experts and Judges in Family Justice systems from the USA, South Africa, Holland, Finland, New Zealand and Australia. The Report was published on 5 September 2017 but without a recommendation that we adopt a no fault Divorce system in Northern Ireland.

The majority of Divorces in Northern Ireland will be based on two years / five years separation or otherwise undefended. Contested Divorces leads to wasted legal costs and increased acrimony and with no positive outcome or achievement. There are however instances where fault Divorces and indeed Contested Divorces are acceptable as part of a traditional oral Hearing before a Judge. One example is where a spouse has been the victim of domestic abuse and wants to give evidence.

Our system contrasts sharply with the system in New Zealand and Australia where there is a strictly “no fault” approach to Divorce and all Divorces are dealt with online. To apply for Divorce in Australia you need only to have been separated for at least one year from your spouse and no prospect of reconciliation. However one of the parties must be an Australian citizen and regard Australia as their home, so in this case Mrs Owens would have to move to Australia and regard it as her home or have lived in Australia for 12 months prior to the presentation of her Divorce to obtain a Divorce earlier than 2020.

Marriage is a contract between two people and therefore could be construed as a private arrangement. The public side is when a Court is asked to intervene in the marriage where it is patently clear that at least one of the parties to it is deeply unhappy and wants the marriage to be dissolved – Mrs Owens is that party.

If Mrs Owens wanted the matrimonial home to be sold or indeed any of the assets to be divided, without her husband’s co-operation on the Divorce, she is effectively prevented from doing so. The financial implications of the marriage breakdown can only be addressed through separate Proceedings which can be issued alongside the Divorce Proceedings but not in isolation from those Proceedings.

She is therefore not only deprived of a dissolution of the marriage but also the opportunity to apply to a Court for a decision on a division of the assets, in the absence of an agreement between her and her husband. The question then arises how this could possibly be fair to either spouse?

Family Law Reform is a particularly sensitive area because of the emotional aspect of the subject matter but any Reform must reflect the changing social patterns, views of all stakeholders and properly researched evidence.

Anne Marie Kelly is one of the leading family law solicitors in NI. If you have been affected by any of the issues raised in this article, please contact Anne Marie to discuss your situation: amk@mbklaw.co.uk

This article is for general guidance only and should not be regarded as a substitute for professional legal advice.

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