Nicola Logan

The Law in England and Wales stipulates that there is only one ‘ground’ for divorce – the irretrievable breakdown of a marriage. This can be based on one of five ‘facts’. The petitioner can rely on adultery, behaviour, desertion, or separation after two years with consent of the respondent or separation after five years where the respondent’s consent is not required (see our earlier blog on the grounds for divorce). It’s rare that a divorce is defended and, if accepted by the respondent, the petitioner does not need to ‘prove’ anything.

In the case of Owens v Owens, Mrs Owens sought to rely on behaviour but this was defended by her husband. The Court held that her initial petition based on five examples of behaviour ‘lacked beef’. Mrs Owens increased her examples to twenty-seven, but following a court hearing to review matters the judge was not convinced the alleged behaviour was sufficient and the petition was refused. The case was appealed and, having gone through the Court of Appeal, was heard at the Supreme Court on 17th May 2018 where it was held that Mr Owens ‘must remain married to Mr Owens’ until 5 years has elapsed. In 2020 she can THEN rely on the fact that they will have been separated for five years and she would not need Mr Owens’s consent.

The Court were asked to consider how to interpret section 1(2)(b) Matrimonial Causes Act 1973:

‘The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.’

Mrs Owens’s principal ground of appeal had been that the interpretation of this subsection should be based on the impact on the petitioner rather than conduct itself. The use of the word ‘reasonable’ rather than ‘genuine’, stumped this. Mrs Owens was described as being ‘more sensitive than most wives’ and therefore her feelings were considered to be ‘unreasonable’.  It appears to me that the Law is forgetting  that marriage is a union between two individuals, not wider society.

Lady Hale held with regret, ‘our role is only to interpret and apply the law that Parliament has given us.’ Whilst interpretation can adapt to meet changing social norms, Judges cannot alter the words of Parliament altogether- this is something which only Parliament itself can do. Whilst one option open to the Supreme Court may have been to send the case back to be tried again, this placed Mrs Owens between a rock and a hard place- the choice between further contested hearings which could span over months, even years, or the wait until 2020 when 5 years would have elapsed and she could proceed with her divorce then.

Sir James Munby, President of the Family Division of the High Court, has previously described behaviour petitions as nothing more than a ‘charade’. Most are simply not opposed by the respondent and therefore remain unchallenged by the courts. Some may question what the need for reform is- if it’s all a charade, surely we have no fault divorce anyway? The problem is, often couples get caught up in the charade and it only serves to fuel hostility. Whilst children may not be aware of the facts on which their parents rely in their divorce petition, they are bound to be aware of the hostility which may later spill out into arrangements for their care. Whilst behaviour or adultery is not considered by the court in financial disputes, it’s bound to add fuel to the fire between the parties. Furthermore, whilst the case of Owens v Owens represents a minority of cases, it is however a situation which can occur. Are those minority cases not deserving of protection by the Law?

Although the outcome of Owens v Owens may have been met with great disappointment, not least among those family law solicitors who champion Resolution’s ‘No Fault Divorce’ campaign,  it’s hardly surprising given that the Judges’ hands were tied. Only time will tell whether the case will lead to increased pressure on Parliament and pave the way towards no fault divorce in the future.

For the time being, however, Mr and Mrs Owens remain married and couples looking to get divorced are stuck with the ‘blame game’ in order to end their marriage.

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