Owens vs Owens and time for a change

Category: Divorce

The Supreme Court will hear Mrs Owen’s appeal against the Court of Appeal judgment today and the case has been described as being “the most significant divorce case of the century”.

The background is that the parties were married in 1978 and separated in February 2015. Mrs Owens filed a petition for divorce in May 2015 contending that the marriage had irretrievably broken down. The petition was based on Mr Owen’s behaviour, which Mrs Owens argued meant she could not reasonably be expected to live with him and that there should be a divorce. Mrs Owens gave details of incidents of behaviour within her petition, which included occasions where her husband was alleged to have made disparaging or hurtful remarks to her in front of third parties. Mr Owens defended the case and argued at the trial that the examples given of his behaviour were not such as to satisfy the requirements of the current legislation. The Judge agreed and dismissed the petition. This decision was upheld on appeal and Mrs Owens has now taken her case to the Supreme Court.

As the law currently stands, a couple must have been married for more than a year before they can divorce. There is only one ground for divorce in England and Wales and that is that a marriage has irretrievably broken down. There are five facts that can be used to show a Court that this has happened, they are;

  • A spouse has committed adultery with a member of the opposite sex and the other finds it intolerable to go on living together.
  • A spouse has behaved in such a way that it would be unreasonable to expect the couple to go on living together.
  • A spouse has deserted the other for a continuous period of two years or more.
  • The couple has been living separately for two years or more and agrees to the divorce.
  • A couple has been living separately for five years or more whether or not they agree to divorce.

Separating couples are sometimes in a position where they do not feel that either of them has behaved unreasonably and adultery is not relevant. Under the current legislation, a couple in this situation has to wait two years from the date of their separation to divorce. If they wish to be divorced within two years they are in a very difficult position where they effectively have to agree between them that one of them will “take the blame” to enable them to get divorced more quickly.

It is possible for family lawyers to assist the petitioner with drafting allegations of behaviour within a petition as gently as possible, but, as has been shown in the Owens’ case, the petition does need to be strong enough for the divorce to go through.

It seems most likely that, rather than a change coming as a result of the Judgment, in this case, it will need to come from parliament.  However, this case has again highlighted the need for reform of the law and Resolution (a national organisation of family lawyers committed to non-confrontational divorce, separation and other family problems) has now joined the case to push for the necessary change.

The idea of a “no-fault” divorce is not a new one and attracts criticism that it would make divorce easier. My view is that “no-fault” divorce may be seen as supporting a dignified end to a marriage and the most positive ongoing relationship between the parties and I hope that what I see as necessary change will come sooner rather than later.

Read more about the case on the BBC website.

Anne Shears is a Solicitor within the Nash & Co Family team. She has a wealth of experience in dealing with Family law, and is a member of Resolution, an organisation encouraging family law cases to be pursued and resolved in a non-antagonistic and constructive manner. You can contact Anne on 01752 827015 or by emailing [email protected]