Is ‘no fault’ divorce the answer to outdated divorce laws? Jeremy Ford gives his view on the Owens vs Owens case

The Supreme Court is today hearing the case of Owens in what is the case of a generation.

It concerns a disputed divorce between Tini Owens and her husband Hugh Owens. They married in 1978 and separated in February 2015. Ms Owens filed her petition for divorce in May 2015 and is still not able to divorce her husband.

It is worth noting that the only ground for filing a divorce petition is that your marriage has irretrievably broken down.

The court will not be able to find that a marriage has irretrievably broken down unless it is satisfied that:

  1. the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
  2. the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
  3. the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
  4. the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;
  5. the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).

Ms Owen’s petition was based on her husband’s behaviour, which she argued meant she could not reasonably be expected to live with him within the meaning of s 1(2)(b) Matrimonial Causes Act 1973. She gave particulars of incidents, 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 s 1(2)(b). The judge agreed and dismissed the petition, thus locking them into their marriage – their marriage has undoubtedly as a matter of fact irretrievably broken down but not in the eyes of the law. Ms Owens appealed unsuccessfully to the Court of Appeal and now to the Supreme Court. Most lawyers agree that marriage breakdown is difficult enough without having to cite reasons for the breakdown which only serves to increase hostility. There is a great movement amongst family lawyers who are campaigning for a no-fault divorce system. It is perhaps best said by Stephen Lyon, a barrister at 4 Paper Buildings, who appeared in The Times quote of the day, “It’s a fact of life that couples fall out of love and relationships break down. Having to scan back through a marriage and find examples of bad behaviour can exacerbate the divorce and turn an already hard time int a much more fraught one. It’s time our courts recognised that and hauled divorce law into the 21st century.”

So the Supreme Court will be deciding upon whether Mrs Owens can have her divorce ie. has Mr Owens behaved in such a way that she cannot reasonably be expected to live with him. What it cannot do is override the statute, that is a matter for government, who will no doubt have to look at this outdated aspect of the law when, it is hoped, the Supreme Court will say that an Act passed in 1973 is not in keeping with modern society in 2018.

Jeremy Ford
Jeremy Ford
Consultant Solicitor-Advocate, Setfords Solicitors

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