Owens: is it time for a 'no-fault' divorce?

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By Sarah Cornes

In May 2018, the Supreme Court heard the appeal of the controversial case of Owens v Owens. Judgment was delivered on 25 July 2018, dismissing Mrs Owens’ appeal, as a result of which she “must remain married to her husband for the time being”.

Mrs Owens’ divorce petition had been dismissed by both the Family Court Judge and Court of Appeal on the basis that her allegations of unreasonable behaviour were “at best flimsy”. Consequently, she would have to remain, in the words of the Court of Appeal, in a “wretched predicament… locked into a loveless and desperately unhappy marriage”.

The Supreme Court Judges stated that they were dismissing Mrs Owens’ appeal “with reluctance”, but made clear that their judgement was bound by the current legal framework. Accordingly, calls to Parliament to reform the current fault-based divorce law have intensified.

There are only five facts (or bases) upon which parties can rely in support of their claim that their marriage has broken down irretrievably: adultery, unreasonable behaviour, desertion, two years’ separation where both parties consent, or five years’ if no consent. If waiting for a minimum of two years is impractical, one must instead rely on one of the ‘fault-based grounds’: adultery or unreasonable behaviour. The petition is reviewed by a District Judge who determines whether or not, on the facts, they consider the marriage to have broken down irretrievably.

Unfortunately, the most common fact for divorce (unreasonable behaviour) requires the Petitioner to give examples of such behaviour in the Petition. Unsurprisingly, this can inflame an already fraught situation, preventing many couples who have simply “fallen out of love” from achieving a separation amicably by encouraging blame. This is particularly damaging where there are children of the family. It can also have a negative impact on financial negotiation.

It would appear that, by taking her case to the Supreme Court, Mrs Owens’ marriage had irretrievably broken down. So why must she remain in this “loveless” marriage? If 42% (Source: www.ons.gov.uk) of marriages already end in divorce, Family Court judiciary can hardly claim that the Courts are ‘preserving the sanctity of marriage’.

As such, recent years have seen a groundswell of support from both family lawyers and the general public for the introduction of a ‘no-fault’ ground for divorce.

Resolution, an organisation of 6,500 family lawyers (who made representations to the Supreme Court in the Owens case) propose that the government introduces an additional basis for divorce whereby, should a marriage break down, one (or both) of the parties can give notice to the other and if, in 6 months, either party still considers the marriage to be over, they can apply for Decree Absolute.

This proposal is simple and removes the need for any allegation of blame, but still gives parties time to reconsider their decision before making the final application for divorce. It is difficult to see why such a sensible solution remains on the backburner. Perhaps the judgment of the Supreme Court in Owens will provide the necessary momentum.

Lady Hale, President of the Supreme Court and one of the Judges in the Owens case, has herself supported this proposal.

As for Mrs Owens, she will have to remain married to her husband until February 2020, after which she will be able to apply for divorce on the basis of five years’ separation. She will not require her husband’s consent.

The Supreme Court decision was immediately trending on Twitter, with thousands voicing their support for Mrs Owens. They were collectively enraged on her behalf, with a sense of unity not often seen on Twitter!

The Supreme Court Judges held that, although their decision generated “uneasy feelings”, the Judges in the lower Courts had “not incorrectly” applied the law and, as such, there was no other option than to dismiss Mrs Owens’ appeal, stating that “uneasy feelings [were] of no consequence in this court”. Mr Owens’ barrister had argued that Mrs Owens was “essentially advocating divorce by unilateral demand... ignoring the court’s duty to have some objective regard to [Mr Owens’] behaviour”.

Lady Hale considered granting Mrs Owens a re-hearing (having only had time to hear evidence of 4 of Mrs Owens’ 27 examples of unreasonable behaviour), but found that it could not be in the interest of the parties for there to be a further contested hearing, as the cost, time and stress it would cause would not be proportionate. By the time of another hearing and judgment, Mrs Owens would be close to the date in February 2020 when she could file another divorce petition on the fact of five years’ separation without “any obstacle standing in her way”.

It was a devastating result for Mrs Owens. Not only must she remain married against her will, but her application for financial settlement must also be dismissed until subsequent divorce proceedings are issued.

Wider ramifications of this case include the possibility of increased numbers of defended divorces. Those who cannot afford solicitors’ advice may find their defended divorce petitions (based on unreasonable behaviour) dismissed on what, prior to the Owens case, had been deemed “acceptable” examples of unreasonable behaviour.

It will be very interesting to see what steps, if any, Parliament takes from here.

For further information, please contact sarah.cornes@twmsolicitors.com

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