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Owens v Owens: Divorce denied

Supreme Court denies Tini Owens divorce from husband of 39 years – time for no fault divorce!

In a judgment delivered today, the Supreme Court has dismissed the appeal of a wife, Tini Owens, seeking to divorce her husband of 39 years, Hugh Owens, for his unreasonable behaviour. Tini Owens will now need to wait until 2020, at which point the parties have been separated for five years, prior to being granted a divorce.

Current Divorce Law

The current divorce law of England & Wales (pursuant to Section 1 of the Matrimonial Causes Act 1973) provides that there is one ground for divorce which is the irretrievable breakdown of the marriage.

This needs to be proved by one of five facts:-

  • that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
  • that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
  • that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
  • 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;
  • 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.

Facts 1- 3 are fault based.  Facts 4 and 5 are not. However, in circumstances where one party seeks to divorce prior to the parties’ separation of over five years (without the consent of the other party), they are often forced to rely on a fault-based fact, despite this not necessarily being a true reflection of the cause of the breakdown of the marriage.

Route to the Supreme Court

Mr and Mrs Owens married in 1978 and separated in 2015. Prior to the separation, Mrs Owens had engaged in an on-and-off relationship with another man during the last years of the marriage. By 2015, she had come to the conclusion that the marriage was at an end.

Mrs Owens sought to divorce Mr Owens, on the basis that the marriage had irretrievably broken down. However, when it came to preparing the petition, she was unable to rely on her own adultery to support the ground that the marriage had broken down irretrievably. In the circumstances, as none of the other MCA 1973 options were available to her, she had no option but to rely on her husband’s ‘unreasonable behaviour’ in support of the irretrievable breakdown of the marriage.

In her petition, Mrs Owens alleged that Mr Owens had been moody, argumentative and critical of her in front of others. The anodyne petition is one which most spouses would accept, in circumstances where it is clear that the other party no longer wishes to remain married. However, Mr Owens defended the petition, stating that he had not behaved in the way Mrs Owens alleged, that the marriage had not broken down irretrievably and that he wanted to continue living with Mrs Owens.

In 2016, Mrs Owens was directed to provide more detailed particulars of behaviour, which she duly did, providing no less than 27 examples of Mr Owens’ behaviour.

A trial was heard by HHJ Tolson, during which Mrs Owens provided evidence on a selection of the examples of behaviour. Upon hearing the parties’ evidence, HHJ Tolson concluded that whilst Mrs Owens ‘cannot go on living with her husband’ and Mr Owens was ‘deluding himself’ if he thought otherwise, he found that Mrs Owens had failed to establish that it was Mr Owens’ behaviour which had caused the marriage to break down.

Mrs Owens appealed against this decision to the Court of Appeal, but her appeal was also dismissed. By that point, Mr and Mrs Owens had been separated for over two years. However, Mr Owens maintained that the marriage had not broken down irretrievably and would not consent to a divorce.

Judgement Today

In a judgment delivered today, the Supreme Court has unanimously dismissed Mrs Owens’ appeal.

The Supreme Court confirmed that under the current legislation, the test to be applied where one party defends the allegations of unreasonable behaviour is as follows:

  1. To determine what the respondent did or did not do by reference to the allegations of behaviour in the petition;
  2. To assess the effect which the behaviour had upon this particular petitioner in light of all the circumstances in which it occurred;
  3. To make an evaluation as to whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable.

In summary, where the allegations are defended, the court needs to be persuaded that the petitioner cannot reasonably be expected (by an objective “right-thinking person”) to live with them, based on both of their individual personalities. It is therefore both a subjective and objective test. In applying the test to this case, the Supreme Court held that that HHJ Tolson had applied a correct analysis in reaching his conclusion as objectively, Mrs Owens had not proved that Mr Owens had behaved in a way which a “right thinking” person would consider unreasonable.

The result of the Supreme Court’s decision is that Mrs Owens will be unable to divorce Mr Owens until 5 years have elapsed since the beginning of their separation. She will remain married until that point when, in 2020, she will be able to rely on the fact they have been separated for five years in support of the fact that the marriage has irretrievably broken down.

In delivering the judgment, the majority of the Supreme Court Justices invited Parliament to consider replacing a law which denies Mrs Owens a divorce in the present circumstances.

Time for No Fault Divorce

Whilst the Supreme Court has applied the law correctly, the practical implications for Mrs Owens highlights the need for urgent reform to the divorce law in England & Wales. It is undeniable that the current law has caused Mr and Mrs Owens significant emotional and financial loss, as a result of the law requiring Mrs Owens to prove blame for the breakdown of the marriage. It is important to remember that notwithstanding this highly contested litigation, they remain parents to their now adult children and these proceedings cannot have helped a relationship which would have been far better maintained than polarised.

In circumstances where adults can make a decision to enter into a marriage irrespective of the length of their relationship, they should be able to decide that they no longer wish to be married without having to ‘prove’ blame of the other party (or wait five years prior to being granted a divorce). The effect of the current law is that unhappy spouses are compelled to remain married, despite one of them feeling that they cannot live with the other person.

Whilst contested divorce proceedings are rare – and something that happens in just 1% of divorces – the law requires urgent reform to ensure those in similar circumstances to Mrs Owens are not ‘locked in’ to potentially years of unhappiness, as a result of the current legislation.

Resolution has been campaigning for many years for the introduction of no-fault divorce. Following the Supreme Court hearing, the Resolution National Chair, Margaret Heathcote, commented:

‘There is no evidence that fault acts as a buffer to slow the divorce process, and the petition plays no part in determining other factors, such as financial arrangements or what happens to any children the couple may have.

The current system is outdated, unfair, and unnecessary. It’s high time that we brought more maturity and transparency into the divorce process.’

Last week, Baroness Butler-Sloss launched a Private Member’s Bill committing government to review the current divorce law. The Bill requires the Government to review the current law on divorce and civil partnership dissolution and to consider a proposal for a system of no-fault divorce. No doubt family practitioners across England & Wales welcome and eagerly await a change to put an end to this blame game.

Situations of defended divorce proceedings are relatively rare, but as is evident from this judgment, it is extremely important that the petition is drafted by a family law specialist at the onset, to ensure that the particulars are carefully considered in light of the current legislation. If you would like to speak to one of our family law specialists about divorce proceedings or other family matters please contact us.

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