Background

The appeal to the Supreme Court in the high profile case of Owens v Owens has been dismissed with the judgment published earlier this week. The wife’s appeal against the court’s decision to dismiss her divorce petition was heard on 17 May 2018.

The parties married in 1978 and separated in February 2015, with two adult children. The wife filed her divorce petition on 6 May 2015 relying on section 1(2)(b) of the Matrimonial Causes Act 1973, that the husband had behaved in such a way that she cannot reasonably be expected to live with him. The other reasons of adultery (s1(2)(a) MCA 1973), desertion (s1(2)(c) MCA 1973), two years separation of consent desertion (s1(2)(d) MCA 1973), and five years separation (s1(2)(e) MCA 1973), were not applicable in this case and so were not available to the wife.

The husband filed his acknowledgement of service on 16 July 2015, indicating his intention to defend the divorce. At first instance, hearing the case on 15 January 2016, HHJ Tolson QC agreed that the marriage had broken down, but found that the wife’s examples of the husband’s behaviour were "flimsy and exaggerated". Therefore the wife’s petition was dismissed with the husband having defended the divorce successfully.

Court of Appeal

The wife appealed the court’s decision and the case was heard in the Court of Appeal on 14 February 2017. Sir James Munby, President of the Family Division, agreed with the findings of fact made by HHJ Tolson QC and the wife’s appeal was dismissed. The ongoing litigation has led to much media attention, together with many arguing that the legislation should be reformed to cater for many marriages where both parties simply grow apart, with neither or them to blame for the failure of the marriage. The law does not currently permit a ‘no fault divorce’ and those campaigning for a change in the legislation are challenged by some who argue that this will enable people to divorce too easily.

Supreme Court

The Supreme Court agreed with the Court of Appeal in their judgement today. Lord Wilson stated that the case was dismissed ‘with reluctance’, and the uncomfortable nature of the present legal position has been acknowledged. The wife, Mrs Owens, will now be forced to wait until 2020 to divorce Mr Owens on the basis of 5 years separation (s1(2)(e) MCA 1973) that does not require the husband’s consent.

James Turner QC intervened in the Supreme Court, on behalf of Resolution. Their chair Nick Shepherd, spoke out following the Court of Appeal decision stating:

The simple fact is, this case should not have been necessary. Only by implementing a no-fault divorce system can we ensure such a situation doesn't happen again.

The Supreme Court has urged Parliament to consider changing the law.