Family Law

Ali Alrazak, a law lecturer at the University of Wolverhampton, revisits some of the Supreme Court judgments that impacted areas of family law in our '2018 Supreme Court' series: the cases that defined 2018.

Today: Owens v Owens [2018] UKSC 41.

Owens v Owens [2018] UKSC 41

The need for no-fault divorce in England and Wales is currently one of most requested legal reforms. The main issue lies in existing statute, namely s1(2)(b) of the Matrimonial Causes Act 1973 which requires one of the following facts to demonstrate the marriage has broken down irretrievably;

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted;

(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

The need to allocate ‘fault’ causes both factual and legal issues for couples who no longer want to be married, but do not feel a specific party is to blame. The result is the unfortunate blame-game that occurs in order to successfully divorce unless the parties have been separated for 2 years and respondent consents to a decree being granted.

For the vast majority of cases petitions under s1(2)(b) succeed. This year it took the rare instance of a defended suit to best demonstrate the need for no-fault divorce. This is where the court had no choice but to rule that a clearly broken-down marriage must continue until the full 5 year separation period has expired. 

This is the disheartening yet predictable outcome of Owens v Owens. In this case Mrs Owens, the appellant, had been married to Mr Owens, the respondent, since 1978. Separation occurred in 2015 in which Mrs Owens issued the divorce petition on the basis that under s1(2)(b) of the Matrimonial Causes Act 1973, the marriage had broken down irretrievably because Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him. Mr Owens decided to defend the suit.

Mrs Owens alleged that due to Mr Owens’ behaviour, namely being argumentative, moody and disparaging her in front of others, she had felt ‘unhappy, unappreciated, upset and embarrassed and had over many years grown apart’ from Mr Owens.

The judge at first instance initially allowed Mrs Owens to amend her petition to include 27 individual examples of Mr Owens’ behaviour. The judge found that though the marriage had broken down, the test under s1(2)(b) had not been met because the examples were at best ‘flimsy’. Mrs Owens appealed to the Court of Appeal, though they dismissed her appeal, leading to the Supreme Court.

The Supreme Court ‘reluctantly’ dismissed Mrs Owens’ appeal. At paragraph 45 of the judgment, the majority asked that Parliament consider whether to replace the law that prevented Mrs Owens from being granted a divorce.

The case of Owens v Owens has already contributed to the call for no-fault divorce. The government has now planned to launch a consultation addressing no-fault divorce, though how this will play out given the recent political climate remains to be seen. Owens v Owens has now been cited in the House of Commons Library briefing paper as a major factor, alongside the likes of the repealed Family Law Act 1996 no-fault divorce provision, for the call of no-fault divorce. The Divorce (etc.) Law Review Bill with a proposal scheme for no-fault divorce is likely to call upon Owens v Owens in its second reading debates.