Owens vs OwensJul 26, 2018
The Supreme Court has dismissed Mrs Owens’ appeal against the Court of Appeal judgment in the case that has been described as being “the most significant divorce case of the century”.
The background to the case is that the parties were married in 1978 and separated in February 2015 when Mrs Owens left the former family home. 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 took 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 have been living separately for two years or more and agree to the divorce.
- A couple have 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 badly and adultery is not relevant. In these circumstances, under the current legislation, a couple has to wait two years from the date of their separation to divorce.
For those couples that do not wish to wait that long (for emotional and/or financial reasons) it is possible for family lawyers to assist 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.
Following the dismissal of Mrs Owens’ appeal, she is in an unpalatable position of needing to wait until February 2020 (when she and her husband will have been living separately for five years) to achieve a divorce. As was expected, rather than a change coming as a result of Judgment in this case, it will need to come from Parliament. The 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) 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 a change in the law is required to support a dignified end to a marriage hopefully bringing about a positive ongoing relationship between the parties. I hope that what I see as necessary change will come sooner rather than later.