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Owens v Owens – the Supreme Court Decides that Mrs Owens Has Not Met the Test for Divorce

Zoe Rose

Last month solicitor Zoe Rose, in our Family law team, reported on the importance of the awaited Supreme Court decision in Owens v Owens.

Zoe’s blog, with full details of the background to this case can be found here. The decision was handed down on 25th July 2018. Zoe now considers the decision in detail and the potential ramifications for the area of divorce. 

The Decision

The Supreme Court has decided that Mrs Owens’ petition did not meet the current test for divorce and therefore, a decree of divorce cannot be granted.  In this case, Mrs Owens had sought to rely on section 2(1)(b) of the Matrimonial Causes Act 1973 as the fact for her divorce, namely that “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. To evidence this Mrs Owens cited (in her amended petition) 27 different examples of Mr Owen’s behaviour which in her view made it impossible to live with him. Mr Owens contested the examples.

As the Supreme Court confirmed, the test when considering a petition based on this “fact” has three stages:

  1. Consider what the respondent did or did not do;
  2. Assess the effect which the behaviour had upon this particular petitioner ; and
  3. Evaluate whether an expectation that the petitioner should continue to live with the respondent would be unreasonable.

Mrs Owens failed to convince the original Court that this test was met with reference to the examples she cited in her petition and the Supreme Court found that they had no grounds to overturn this decision.

Helpfully, the Supreme Court clarified that it is not necessary for the petitioner to evidence that the examples being relied on were the cause of the marital breakdown. As a result, whilst some may choose to defend a divorce to establish their “truth” of why the marriage broke down, this not a debate which the Court should embark upon.  

What next?

Well for Mrs Owens, she could seek to petition for divorce again, citing different examples of Mr Owens’ behaviour,  that arguably would meet the test for divorce. It is, however, expected that she will not do this for the fear that Mr Owens will seek to defend the petition again. As the law currently stands this leaves Mrs Owens trapped in her marriage until either Mr Owens’ changes his mind about the extent to which their marriage has broken down or until February 2020 when she can petition on the basis of the length of time they have been separated without needing Mr Owens’ consent. Neither of these options appear acceptable in a modern society, as they result in Mrs Owens being (in her words) ‘unhappy’, ‘unappreciated’, ‘upset’ and ‘embarrassed’. These options also risk complications with the resolution of financial matters between Mr and Mrs Owens, as they will not be in a position to obtain a legally binding financial settlement until such time as a Decree Nisi has been granted, which could be many years away. Therefore, leaving Mrs Owens (and other spouses like her) in an extremely uncertain and unsatisfactory position.   

Until the current law is reformed there is also a concern from many within the profession that the need to ensure that petitions include sufficient evidence for the Court, will lead many to “beef up” the examples of behaviour and the impact of such behaviour that are cited. Marital breakdown is an already very stressful and emotionally demanding time for spouses, which will not be assisted by them feeling the need to set out in writing the very worst of their relationship.

There is also a concern that the number of divorces that are defended will increase, as well as the Court time made available to hear such cases to ensure that all the cited allegations can be fully explored in evidence. At a time with the Court’s resources are already under a huge amount of strain, adding more demands will only lead to further delays and could redirect valuable Court resources away from other areas.

What now for ‘no fault divorce’?

One thing all of the Supreme Court Justices agreed on was the unacceptable state of the current law and the need for reform.  This is a mantle that has already been taken up by Resolution and Baroness Butler-Sloss who have introduced a Private Members Bill to Parliament which seeks to amend the current legislation. This new bill seeks to remove any element of blame from divorce by removing the requirement for spouses to evidence or provide a reason for the breakdown of the marriage. But, with Brexit on the horizon, the Government's focus is understandably elsewhere, so it remains to be seen whether they will prioritise this much needed reform.

It should be remembered that the number of divorces that are defended each year is currently extremely low – just 17 out of the 114,000 petitions filed in 2016 were defended. As many family practitioners will be aware, this is often because whilst spouses may disagree about the specific reasons behind the breakdown of their marriage, they nevertheless agree that their marriage has sadly, irretrievably broken down. It is, therefore, extremely rare to find cases where one spouse is actively seeking to prove to the Court that the marriage should endure, as Mr Owens has done. If you have concerns about this then it is important that you understand the potential implications of divorce, not just in terms of the divorce itself but also in relation to financial matters and (where relevant) the arrangements for children. As a result, it is important that clear legal advice is sought. 

For further information or legal advice, please contact Zoe Rose or a member of our team.

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.