Amidst the recent lobbying by many in the family justice system for no-fault divorce, the Court of Appeal’s eagerly awaited decision in the case of the contested divorce of Mr and Mrs Owens will be of particular interest for lawyers and married couples alike.

In this extremely unusual case, Mrs Owens has appealed the decision of HHJ Tolson QC who refused to grant her a divorce on the basis that her marriage has broken down due to her husband’s unreasonable behaviour.

Mrs Owens, who has been married to Mr Owens for 39 years, cited 27 allegations of his “unreasonable” behaviour in her divorce petition. In particular, she claimed that the cumulative effect of Mr Owens’ behaviour made it unreasonable for her to live with him. These allegations were denied by Mr Owens who took the very rare (and costly) position of defending the petition. The judge had to examine the details of the allegations and ultimately refused to grant the divorce on the basis that Mrs Owens’ claims were examples of “minor altercations of a kind to be expected in a marriage” and suggested that she had been “more sensitive than most wives”.

The decision was appealed by Mrs Owens and her case was heard by the Court of Appeal, rather ironically, on Valentine’s Day this year.

On appeal, Mrs Owens argued that HHJ Tolson QC had not made proper findings of fact in relation to the 27 allegations of unreasonable behaviour and highlighted that “it is extraordinarily unusual in modern times for a court to dismiss a petition for divorce.” In contrast, Mr Owen argued that HHJ Tolson QC’s decision should not be overruled because “as the law stands, unhappiness, discontent, disillusionment are not facts which a petitioner can rely upon as facts which prove irretrievable breakdown”.

The Court of Appeal is expected to give judgment in the case shortly. If the appeal court finds in favour of Mrs Owens, many will see this as an acceptance by the judiciary that if one party no longer wishes to remain married then this should be sufficient to prove that the marriage has broken down irretrievably. On the other hand, if Mr Owens is successful, Mrs Owens, now aged 66, will have to wait until she is 70 before she can escape her marriage as the only legal route available to her will be to dissolve the marriage on the fact of five years’ separation from Mr Owens.

Current divorce law in England and Wales does not allow one party to unilaterally decide to divorce because they are unhappy in the marriage. Rather, one spouse usually has to allege bad behaviour on the part of their spouse to prove to the court that the marriage is at a permanent end.

If Mr Owens’ arguments are supported by the Court of Appeal, it will mean that only the very worst types of behaviour will be enough to persuade a court that a marriage has permanently broken down, particularly where the other party chooses to oppose the divorce. Most family lawyers are members of Resolution which promotes the use of non-inflammatory language when conducting divorces to preserve relationships for the divorcing parties and their wider families, particularly children. Family law partner James Stewart comments that: “A decision in favour of Mr Owens’ arguments in this case may mean that the details included in divorce applications are anything but non-confrontational, which will surely start the divorce process off on a highly emotionally-charged path with an ultimate destination that remains the same no matter how it is begun.”