Family Law

The Supreme Court has ‘with reluctance’ dismissed the appeal of a wife who wishes to divorce her husband, on the basis that she has failed to prove that the marriage had broken down irretrievably. The decision in Owens v Owens [2018] UKSC 41 has further strengthened calls within the family law community for law reform to introduce no-fault divorce.

The husband and wife married in 1978 and had two children together. They separated in 2015 and the wife petitioned for divorce claiming that the marriage had irretrievably broken down and that the husband had behaved in such a way that she could not reasonably be expected to live with him (under s 1(2)(b) of the Matrimonial Causes Act 1973). The husband contested the application. At first instance the judge held that the wife’s allegations of unreasonable behaviour were at best flimsy and the application was refused. The wife’s case was then dismissed in the Court of Appeal which applied the law correctly as it stood but acknowledged that there was a strong argument that the law no longer reflected modern day realities and that no fault divorce was called for.

The Supreme Court once again applied the law but admitted to ‘uneasy feelings’. Lady Hale stated:

‘I have found this a very troubling case. It is not for us to change the law laid down by Parliament – our role is only to interpret and apply the law that Parliament has given us.’

Ros Bever, National Head of Family Law at Irwin Mitchell Private Wealth said:

‘This is a very disappointing outcome for Mrs Owens who will now have to wait a further two years before she can restart the divorce process and petition on the basis of having been separated for five years. It is also disappointing for the family law community which has been trying to take the heat out of divorce and encourage separating couples to behave respectfully and where possible amicably towards each other. There is a concern that rather than allegations of behaviour being toned down, they will now be “beefed up” to ensure they are accepted by the court. There is still clear appetite for sweeping reform within the family law sphere. As Lord Wilson noted, it is for Parliament to decide if the law remains satisfactory.’

Nigel Shepherd, the past Chair of Resolution and long-time campaigner for no fault divorce, said:

‘As an organisation who intervened in the case in support of Mrs Owens, we are disappointed at today’s judgment and what it means for her. Whilst the Supreme Court has, reluctantly, applied the law correctly, the fact that they have done so confirms there is now a divorce crisis in England and Wales, and the Government needs to take urgent action to address it. In this day and age, it is outrageous that Mrs Owens – or anybody – is forced to remain trapped in a marriage, despite every judge involved in the case acknowledging it has come to an end in all but name. Today’s judgment underlines just how vital it is that Government now urgently reforms the divorce law. It should not be for any husband or wife to “prove” blame as the law requires many to do – this is archaic, creates needless conflict, and has to change.’

The long-term campaign for no-fault divorce was bolstered on 20 July by the introduction to the House of Lords by Baroness Butler-Sloss of the Divorce (etc.) Law Review Bill. The proposed legislation would commit the Lord Chancellor to review the current law, and report findings back to Parliament. It also proposes a new divorce process where either or both parties could begin divorce proceedings and then confirm the divorce nine months later without alleging fault. Resolution has called on Government, and politicians from all parties, to support this legislation.

Commenting on the Bill Resolution Chair, Margaret Heathcote, said:

‘We hope this Bill will highlight the widespread support for divorce law reform and lead to change that is long overdue. Conflict has been proven to have a negative effect on both divorcing couples and their children. Each day the Government fails to act creates unnecessary conflict for hundreds more families at a time that is already extremely emotional and traumatising for them. Resolution members across the country know there is a better way for separating families. Ministers need to end the blame game and they need to end it now.’

Ros Bever said:

‘There is not yet a date for a second reading of the Bill; with the summer recess upon us it is likely to be some time before the Bill is considered properly. Sadly, there are various historic examples of much needed family law reform being proposed but not making it on to the statute books or coming into force. However we very much hope that this marks the beginning of a positive change to the law and shows the law is finally catching up with modern life.’