In Owens v Owens, the Court of Appeal has upheld the first instance decision of Judge Tolson QC, who refused to grant Mrs Tini Owens a divorce despite finding as a fact that her marriage had broken down and that she “cannot go on living with the husband”. In his judgment, Mrs Owens failed to prove within the meaning of section 1(2)(b) of the Matrimonial Causes Act 1973 that Mr Owens “has behaved in such a way that [she] cannot reasonably be expected to live with [him]”.

In this article we consider the grounds for divorce, the impact of the Owens decision, current practice used by divorce practitioners and the wider public policy arguments for a reform in the law. This article will be of particular interest if you are entering divorce proceedings or advising clients who are.

Grounds for divorce

There is one ground for divorce in England and Wales – the irretrievable breakdown of the marriage. The court cannot hold in law that the marriage has broken down irretrievably unless the petitioner (in this case Mrs Owens) satisfies the court of one of the five ‘facts’ within the Matrimonial Causes Act 1973. The fact relied upon by Mrs Owens was 1(2)(b) - "that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". This is commonly referred to as an "unreasonable behaviour" petition.

Current practice

Generally, practitioners will corresponded with their counterparties prior to issuing the divorce petition, and seek to agree the examples of behaviour to be included. These examples are usually drafted narrowly, to include sufficient detail to convince the court but kept bland enough so as not to inflame emotions at a sensitive time. When the petition is issued, the respondent simply writes “no” in the box asking whether he intends to defend.

This practice of agreeing in advance and using minimal details is not only common place, but actively encouraged by the Law Society and other professional bodies. The Court of Appeal recognises in its judgment that this practice has, in a sense, created a mechanism for divorce by consent.

The case

Unusually, in this case Mr Owens defended the petition. This forced the parties to court, and ultimately Mrs Owens was unable to prove her case. Judge Tolson found her petition “anodyne”, her allegations “at best flimsy” and that she had “exaggerated the context and seriousness of the allegations to a significant extent”. He found "no behaviour such that the wife cannot be reasonably expected to live with the husband". He dismissed the petition, and in doing so recognised that the effect of this was to leave the parties “stymied”.

The Court of Appeal dismissed Mrs Owens’ appeal. The Court of Appeal agreed that the question the judge must consider in an unreasonable behaviour petition is:

"Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him taking into account the whole of the circumstances and the characters and personalities of the parties".

This was the problem for Mrs Owens. While it has significant subjective elements (focusing on the particular husband and wife in the case) it is ultimately an objective question. The subjective fact of whether you personally no longer want to be married to your particular spouse is not paramount.

Judge Tolson found that Mrs Owens was more sensitive than most other wives, but went on to conclude that “it matters not”. He also relied on the fact that the incidents of which she complained were isolated. It is peculiar that the Court of Appeal gave so little analysis as to this ground of appeal, as the advice to clients has long been that their particular thoughts and feelings are the overriding consideration.

Wider issues

The Court of Appeal concluded that Judge Tolson had correctly applied the law as it stands, and that Mrs Owens is not entitled to a decree of divorce. The court notes in its conclusions that she "must remain trapped in her loveless marriage... [as] Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be”.

Most laypeople (and indeed some lawyers) would be surprised to find that being in a wretched and unhappy marriage is not sufficient to convince a judge that you should be granted a divorce. Indeed, many would be surprised that the court has the power to prevent a divorce at all.

Public policy

The fact that the State should decide whether or not a marriage be dissolved, rather than the parties to the marriage, seems archaic. That the State can force parties to remain married even when one is deeply unhappy is almost perverse.

The Court of Appeal recognises that family law has undergone huge modernisation over the last fifty years. Only in 1973 was it established that a husband could be guilty of kidnapping his wife, only in 1992 that husbands lost immunity from prosecution for raping their wives and only in 2004 when immunity was similarly removed in respect of sexually transmitted infections. This path towards recognising the personhood of the parties to a marriage continued in White v White [2001] which established the principle of marital equality and held that “there is no place for discrimination between husband and wife and their respective roles”. But this path to personhood seems blocked by the very basis and procedure for divorce over which the court still reigns supreme.

The judgment seems at odds with the fact people now live their lives with increasing independence and flexibility. Many couples cohabit, parent children and separate without ever entering into the contract of marriage. We have written before about the potential pitfalls of unmarried cohabitation, and the lack of rights afforded to cohabitants on separation. The judgment in Owens could amount to a Catch-22 for couples – remain unmarried but risk your rights and security on separation, or marry and risk the court forcing you to remain so against your will.

It is also at odds with how the divorce process normally operates. The careful construct of divorce by consent described above can be derailed by the simple act of contesting the petition. The anodyne and mild petition drafted in line with guidance and common practice could prevent the divorce when the parties are forced into court to persuade a judge that things really are bad enough. It was in part the scantiness of Mrs Owens’ petition that proved fatal to her case.

It was recognised in the judgment that, had Mr Owens not sought to defend the petition, it would likely have passed through the court system to Decree Absolute without comment. It seems a bizarre situation where, for the sake of upholding an outdated involvement by the State in the contract of marriage, the success or failure of a divorce petition is in reality placed firmly back into the hands of the very person from whom the petitioner is seeking separation – her spouse. All he must do to derail a petition that would otherwise pass through the court largely unnoticed is to defend it, with the result that the parties may both end up in court dissecting their marriage in minute detail to satisfy the judge of the reasonableness of their feelings.

This judgment adds weight to the call for no-fault divorce (something that practitioners have been seeking for many years). When judges try as they might cannot find an outcome that doesn’t leave the parties trapped in an unhappy and loveless marriage, it is clear Parliament must legislate.