Owens v Owens – Grounds for Divorce
In England and Wales the notion of a no-fault divorce is not recognized as part of the law. No matter how amicable a divorce, there must be a petitioner, and that petitioner must prove the irrevocable breakdown of their marriage by providing one of 5 facts, 4 of which either need consent by the respondent or be of satisfaction to the court.
The legal procedure, can in fact make a divorce more complicated and layered, allowing for the possibility of a defended divorce.
In July 2018, Lord Wilson at the Supreme Court explains the Judgment on the Owen and Owen matter, which resulted in the petitioner wife’s failure to obtain a Decree Nisi for what she felt was a failed marriage. By considering the grounds for divorce in this matter, paralleled to the law of divorce as it has been for the past 50 years, the petition was rejected on the grounds that the marriage had in fact not broken down irretrievably.
In Owens and Owens, in 2015 the petitioner wife alleged that the husband’s behavior had become unbearable due to his behavior, alleging that he had been moody, argumentative and embarrassingly critical of her in front of others. Mr. Owens defended this stating that he did not feel he had behaved in such a way and further stating that their marriage had not broken down and that he hopes she would return, giving their marriage a chance, this led to an unusual trial where Mrs. Owens petition and her allegations were rejected. The Judge said the allegations were “Flimsy and exaggerated”. It is advised that if the accounts for ‘unreasonable behavior’ are relatively minor, then multiple allegations could help establish a solid case.
The petition was therefore dismissed as the Judge stated “the law had prevented him from holding that their marriage had broken down irretrievably”.
Later in 2017, in the Court of Appeal, there was a second appeal against the ruling, by which point Mrs Owens had the additional ground of a 2 year separation, however Mr Owens still refused to consent to the divorce and the court dismissed the appeal. The details of unreasonable behavior were the same as those given in the first petition, and the 2 year separation was missing the consent of the respondent and thus the petition still failed to provide for a broken down marriage by law.
This has brought on some confusion to the public, as it seems that the law has been unable to deal with this matter sensibly. The Supreme Court it’s self in the Judgment Summery states “today we reluctantly dismiss it and analyze the law relating to a behavior case and conclude that the focus cannot be directed solely to whether Mrs Owens can be expected to live with Mr Owen again, the court must initially address how Mr Owens behaved towards her and then consider it’s particular effect on her”.
Was enough evidence given or heard? And was it considered sensibly enough, and might the law on divorce be perceived unreasonable and dated in such matters that it will not allow for a separation possibly leaving individuals to feel stuck in an awkward predicament or in a loveless relationship for a longer period of time.
The appeal has been dismissed and Mrs Owens must now wait until 2020 so that she can make a petition on the grounds of a 5 years separation. She will neither need consent from Mr Owens or to provide further proof of unreasonable behavior that may or may not be accepted by the court.
Owens v Owens has brought the question forward to parliament whether “rules that govern the requirements remain satisfactory”
The Government has indicated that any legislative change would be considered as part of its general consideration of what further reform may be needed to the family justice system.
The reality of the modern world is that couples do separate and sorting out the division of assets and arranging the care of the children is often the hardest aspect of ending any marriage. Divorce should not be difficult or place unnecessary and unjust hurdles. Eliminating blame would allow those involved to focus on the main issues. However, opponents of no-fault divorce worry that it might make ending marriage too easy.
If you have queries regarding the matters raised in this article and would like some advice then please contact Muna Saleem, Partner and Head of the Family Team on 0208 567 3477.