Senior solicitor Gemma Kemp, in our leading Family law team, explores why Parliament should bring the much called for reform of divorce laws, highlighting the case of Owens v Owens.
Mr and Mrs Owens have been married for 39 years. They separated in 2015 and Mrs Owens petitioned for divorce, relying on the ground that the marriage had irretrievably broken down and that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him.
Under the Matrimonial Causes Act 1973, which is the law that applies to divorces in England & Wales, there is only one ground for divorce and that is the irretrievable breakdown of the marriage. To evidence that this is the case, the person seeking the divorce (the petitioner) must rely on one of five facts:
- That the other party (the respondent) has committed adultery and the petitioner finds it intolerable to live with them;
- That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them;
- That the parties have been separated for at least two years and both consent to the divorce;
- That the parties have been separated for at least five years (in this instance the consent of the respondent is not required);
- That the respondent has deserted the petitioner for at least two years.
In her divorce petition, Mrs Owens sought to rely on a number of examples of Mr Owen’s behaviour, which were seemingly trivial when considered individually, but which, she says, had a significant detrimental impact upon her over a number of years and made her feel “unloved, isolated and alone”.
Unusually, Mr Owens defended the divorce and consequently, the matter fell to be decided by the court. At first instance, the Judge found that Mrs Owens had not sufficiently proved that the marriage had broken down irretrievably and that the allegations of unreasonable behaviour set out in her petition were weak and trivial. It has been reported in the press that these allegations included Mr Owens criticising his wife in front of the housekeeper, an argument in a shop and unkind comments during a meal.
Mrs Owens appealed the decision to the Court of Appeal, arguing that if the divorce was refused, she would be left living in a loveless marriage. Last week, three judges in the Court of Appeal confirmed that the first Judge had correctly applied the law and Mrs Owen was refused the divorce she was seeking.
This may seem incredibly unfair, and from reading the judgment it is clear that the Judges had significant sympathy with Mrs Owens. However, the law relating to divorce is set out in an Act of Parliament and cannot be altered by the courts. Lady Justice Hallett, one of the Appeal Judges said in her judgment:
“…it [is the court’s] duty…to apply the law as laid down by Parliament. We cannot ignore the clear words of the statute on the basis we dislike the consequence of applying them.”
For a number of years, there have been calls for Parliament to change the divorce laws in England and Wales and to move to a ‘no fault’ system, whereby those in a loveless marriage, like Mrs Owens, could divorce without having to place blame and provide examples of ‘unreasonable’ behaviour. Resolution (a national group of family lawyers, who adhere to a code of conduct which aims to deal with family matters in an amicable and constructive manner, where appropriate) have been calling for reform for some time, and last year over 150 Resolution members lobbied their MPs and called for a ‘no fault’ divorce system.
Many family lawyers hope that the case of Owens v Owens will encourage Parliament to bring about the much called for reform of divorce laws, but until they do the Judges can only give effect to what is currently set out in statute.
As for Mrs Owens, she is to remain married to a man whom she no longer loves, at least until 2020, when she will be able to submit a fresh divorce petition relying on her separation from Mr Owens for a period of five years.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.