OWENS -V- OWENS: Where do we go from here?

The family law community was in a state of suspense today as the Supreme Court handed down its highly anticipated judgement in the case of Owens -v- Owens. The case was heard by the highest appellate Court on 17th May 2018 and concerns the interpretation of section 1(2)(b) of the Matrimonial Causes Act (MCA) 1973 which states that ‘the Court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the Court of one or more of the following facts…’ and, specifically in relation to unreasonable behaviour; ‘…the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent…”.

The parties in this case separated in February 2015, following a marriage of some 37 years. Mrs Owens filed a petition for divorce in May 2015, citing her husband’s unreasonable behaviour. The husband defended the case and argued that the examples given as to his unreasonable behaviour did not satisfy the requirements of s 1(2)(b) MCA 1973. The Judge agreed and dismissed the wife’s petition. The wife’s appeal was dismissed by the Court of Appeal in March 2017. Mrs Owens appealed to the Supreme Court.

The Supreme Court has today dismissed Mrs Owen’s appeal and, consequently, she must now wait until 2020 to successfully divorce her husband on the basis of five years’ separation. Lord Wilson stated that whilst the Court “recognises that, unless and until repealed by Parliament, section 1 of the 1973 Act must conscientiously be applied, the family Court takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being”.

Resolution has long been campaigning on divorce law reform and, in a poignant statement issued to the press after the judgement this morning, former Resolution Chair Nigel Shepherd said: “Whilst the Supreme Court has, reluctantly, applied the law correctly, the fact that they have done so confirms that there is now a divorce crisis in England and Wales, and the government needs to take urgent action to address it. 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.”

What does this mean for the future of divorce law?

Reform of divorce law has been long-campaigned for by professionals and organisations alike and we have flirted with the concept of divorce law which is devoid of fault entirely for almost thirty years. We came close to reform when the Family Law Act 1996 was introduced following the Law Commission’s report in 1990, but the relevant sections which made provision for a no-fault divorce never came in to force.

The Owens case coincides with the first reading of a Bill as recently as 18th July 2018 which requires the Government to review the current law and consider proposals for new no-fault divorce laws whereby one or both parties to the marriage would, upon Application to the Court, register that their marriage has broken down irretrievably. The divorce would be granted automatically after a nine-month cooling off period upon confirmation by one or both parties that the marriage has indeed broken irretrievably, with no further evidence or reason being required.

We are not surprised by the judgement today but we are deeply disappointed for Mrs Owens who, by virtue of deficient and outdated divorce laws, is now unjustly and absurdly bound to remain in a loveless marriage for another two years. Needless to say, reform of divorce law is desperately needed and long overdue. Hopefully, today’s judgement will see the proposal for reform currently before Parliament gain the traction it needs to eliminate the requirement for fault entirely. However, we have been here before and thus we won’t hold our breaths!

In the interim, it is important for family lawyers to continue to adopt a conciliatory, amicable and child-focused approach when dealing with divorce and related matters although we will all no doubt proceed with more caution insofar as unreasonable behaviour petitions are concerned. There is of course now a risk that allegations of unreasonable behaviour will be over-exaggerated and highly inflammatory, which will only exasperate the Respondent, leading to unnecessary hostility between the parties, parental conflict and perhaps an increase in defended suits. This of course remains to be seen.

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