Owens v Owens & the “No fault” divorce debate

Earlier this year, the divorce case of Owens v Owens hit the headlines when the High Court refused to grant Mrs Owens a divorce.  Calls made for the introduction of ‘no fault’ divorce.

The Facts

Mr and Mrs Owens married in January 1978. They had been married for 37 years when Mrs Owens left the matrimonial home in February 2015 and they separated.

In May 2015, Mrs Owens filed a petition for divorce based on her husband’s unreasonable behaviour. Given that only a small percentage of divorces are contested, Mr Owens took the unusual step of defending the divorce.

In January 2016, when the matter came before the High Court, His Honour Judge Tolson QC refused to grant Mrs Owens a divorce. Although he found Mrs Owens “could not go on living with the husband”, he described the behaviour she relied on as “minor altercations of a kind to be expected in a marriage”. The Judge concluded that the marriage had not broken down irretrievably and the petition was therefore dismissed.

Mrs Owens appealed the decision in a move which was supported by Resolution, which has widely campaigned for the introduction of “no fault” divorce. Ironically, the appeal was heard on Valentine’s Day 2017 and the Court of Appeal upheld the decision of the High Court.

Last month, Mrs Owens was granted permission by The President of the Family Division, Sir Justice Munby, to appeal to the Supreme Court.

The Law

The requirements for divorce are set out in the Matrimonial Causes Act 1973. A Petitioner must demonstrate that the marriage has broken down irretrievably by proving one of the five facts:-

  1. Adultery
  2. Unreasonable behaviour
  3. Desertion
  4. Two years separation with consent
  5. Five years separation (consent not needed).

The current law means a Petitioner who cannot rely on the facts of desertion or separation, must rely on the fault based facts of adultery or unreasonable behaviour.

If Mrs Owens loses her appeal before the Supreme Court, she will have to wait three years before she can divorce on the basis of five years separation. Undoubtedly, this would strengthen calls for the Government to introduce “no fault” divorce. However, opponents have warned the concept threatens the institution of marriage.

At the time of writing this article, a hearing date has not yet been set. Until the Supreme Court delivers judgment, petitioners will need to ensure particulars constitute unreasonable behaviour to satisfy the Court whilst at the same time avoiding unnecessary animosity by exaggerating allegations.

 

This article is not intended to constitute legal advice and should not be regarded as such.