Family Law

Lucy Bridger, of RadcliffesLeBrasseur, discusses why the Owens v Owens decision highlights the need for Parliament to seriously reconsider the long standing campaign for ‘no-fault divorce’ and amend the statute accordingly.

Mrs Owens petitioned for divorce in May 2015. In order to demonstrate that the marriage had irretrievably broken down she relied on Mr Owens’ unreasonable behaviour. It was such that she said she could not reasonably be expected to live with him anymore. Mr Owens defended the petition on the basis that his behaviour had not been unreasonable in the context of their marriage.

Reasonable expectations of marriage

The Judge at first instance said that Mrs Owens had exaggerated the context and seriousness of the allegations and that they were at of a kind to be expected in a marriage. The Court found no behaviour that Mrs Owens could not reasonably be expected to live with and, therefore, the marriage could not be said to have irretrievably broken down. Mrs Owens’ petition was dismissed.

Mrs Owens appealed the decision. However, the Court of Appeal returned to the question enshrined in statute: has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent? The Court of Appeal was satisfied that the judge at first instance had correctly applied the law and Mrs Owens’ appeal was dismissed.

Supreme Court

Mrs Owens appealed the decision again in July 2018. Whilst the Supreme Court judges agreed that it was a troubling case and their decision left them feeling uneasy, they recognised that it was not for them to change the law laid down by Parliament.

Their role was only to interpret and apply the law which was handed to them.

As the law currently stands, the petitioner is required to find fault in the respondent and, on this occasion, Mrs Owens had failed to persuade the Court that Mr Owens’ behaviour was unreasonable enough. The effect of the decision is that Mrs Owens will now have to wait until the year 2020 for a divorce, when she will be able to petition on the basis of five years’ separation without Mr Owens’ consent.

No-fault divorce

The decision highlights the need for Parliament to seriously reconsider the long standing campaign for ‘no-fault divorce’ and amend the statute accordingly. Until such time, the risk remains that family solicitors are forced to use more extreme examples of unreasonable behaviour in order to cross the threshold, thereby unnecessarily increasing the animosity between the parties, or that a party remains trapped in a loveless marriage long after they believe it has broken down.