The highest court in the land has today handed down its much anticipated judgment in the case of Owens v Owens. Mrs Owens’ appeal has been dismissed with the effect that her divorce petition cannot proceed. This latest judgment highlights the urgent need for reform of our divorce law.

Current divorce law

In this jurisdiction there is only one ground for divorce: the irretrievable breakdown of the marriage. This must then be proved by evidencing one of five facts set out in statute. The problem is, that unless couples are willing to wait for at least 2 years after they’ve separated to get divorced, then they must assign blame for the breakdown of their relationship, either by citing the other’s adultery or behaviour. This can serve to ‘up the ante’ in already difficult circumstances, and divorce lawyers have long tried to navigate the narrow path between being unnecessarily aggressive in the petition, and too anodyne as to render its contents meaningless.

Background to the Owens case

The archaic state of divorce law in this country has been at the root of the Owens case.

In May 2015, after 39 years of marriage, Tini Owens (68) petitioned for divorce from her husband Hugh Owens (80) on the basis of his unreasonable behaviour. (This was in the context of Mrs Owens’ own affair between November 2012 and August 2013, and her exit from the family home in February 2015 – in her eyes at least, this marriage was definitely over). Mrs Owens’ petition was cast in fairly anodyne terms, and included allegations such as Mr Owens had often been moody and argumentative; that he had disparaged her in front of others and that he had prioritised his work over their family life.

Mr Owens elected to defend the petition – a very rare move in this jurisdiction. He denied the allegations about his behaviour and claimed that the marriage was a successful one and he and Mrs Owens had learnt how to ‘rub along’.

In October 2015, at a case management hearing, the judge gave Mrs Owens permission to amend her petition. She duly did so, citing no less than 27 examples of Mr Owen’s unreasonable behaviour. Mr Owens admitted some, described others as exaggerated, but denied very few.

At first instance, Judge Toulson QC found that the marriage had broken down, but dismissed the petition, saying that it ‘lacked beef’ and describing the allegations as ‘minor altercations of the kind to be expected in marriage.’ This came as a shock to many who had assumed that the threshold for unreasonable behaviour petitions was lower than it had ever been; indeed one can’t help but think that the same petition would have received a rubber stamp had the husband not defended it.

Mrs Owens subsequently took her case to the Court of Appeal, only to face a further dismissal.

Mrs Owens last chance of success lay with the Supreme Court. At that stage, Resolution, the national organisation of family lawyers committed to non-confrontational divorce and separation, intervened in the proceedings. Resolution has long been campaigning for wholesale reform of our divorce law, and in particular for ‘no-fault divorce’, read more here.

Alas, neither Mrs Owens’ arguments nor Resolution’s arguments were successful, and the Supreme Court unanimously dismissed Mrs Owens’ appeal. It’s clear from the judgment however, that the Court felt bound in their decision making by the current legal framework, and that this case was ‘troubling’ and generated ‘uneasy feelings.’

This decision puts a brake on the emerging trend in practice of simply relying on whether the ‘unreasonable behaviour’ threshold has been met and reaffirms the need for the party seeking the divorce also to address why the alleged behaviour means that they cannot reasonably be expected to live with the other party. The court further acknowledged that there was a subjective and objective element to their determination.

Having made their decision, the court recognised that Mrs Owens’ only possible route to divorce is to wait until the parties’ have been separated for 5 years, by which time she will not even need Mr Owens’ consent to the divorce. I would echo Lord Wilson’s call on Parliament to consider a reform of the law ‘which denies Mrs Owens any present entitlement to a divorce in the above circumstances.’