When a marriage is over, there is usually at least one party who wants out. There is one route out which is consensual, but means that the couple have to wait for two years to qualify for it.

There is another path out which is non-consensual but means that the party who wants to leave the marriage has to wait for five years.

The only immediate way to end a marriage has been, up until now, unreasonable behaviour. You could virtually guarantee that if a client commenced proceedings on the basis of their spouse’s unreasonable behaviour, that they would definitely get a divorce. There is however a nasty taste to an unreasonable behaviour divorce. To try and sweeten that pill, lawyers whose clients want to follow this relatively quick route out have been advised in past years to tone down the details of their spouse’s unreasonable behaviour when drafting the divorce petition. Where there has been unreasonable behaviour involving violence or other domestic abuse, very often lawyers advise clients not to cite those details, but to choose softer and more subjective options, in order to achieve as amicable a parting as was possible.

This seemed a sensible course where the husband and the wife both wanted the divorce. Why cite the worst possible behaviour that had occurred in the marriage, when there were less confrontational options available?

In the case of Owens v Owens which was decided last week, Mr Owens had defended the unreasonable behaviour petition brought by his wife. The Court found that the petition did not have enough meat in it to warrant a divorce under current legislation. This case will have a number of ramifications.

The first is that there is a renewed call for no-fault divorce. Without a doubt, the basis for divorce in this country does need to be looked at. To suggest to Mrs Owens that she waits for five years and then re-petitions, is not a happy prospect for her. If she does not want to remain married to Mr Owens, why does she have to?

The other knock-on effect of this decision is that lawyers will probably now not be advising their clients to water down the particulars of unreasonable behaviour in order to keep the peace.

So, on the one hand many lawyers are calling for a no-fault divorce. Many more lawyers will be beefing- up their divorce petitions to make sure this does not happen again. That is a very negative approach, particularly for lawyers like me who are members of Resolution. Throughout the years our mantra has been to try and encourage as amicable an outcome as possible, avoiding the need for inflammatory accusations. Now it may be that we will have to resort to inflammatory accusations, to ensure that our clients get over the finishing line and achieve a Decree Absolute ending their marriages.


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