A landmark case presided over at the Supreme Court in July 2018 has raised the question of whether the law on divorce in England and Wales is in dire need of reform. This is the first instance in recent years in which a case concerning divorce alone has been heard by the Supreme Court as it is usually the issue of finances and children during divorce proceedings that are taken to the appellate courts.
What did the case of Owens v Owens involve?
The case concerned Mrs Owens who petitioned for divorce on the basis that her marriage to Mr Owns had irretrievably broken down. The couple were married for 39 years following which, the couple separated in 2015 resulting Mrs Owns living separately from Mr Owens.
Mrs Owens petitioned for divorce on the basis that Mr Owens behaved in such a way that she could not reasonably be expected to continue her marriage. The allegations of unreasonable behaviour included:
- Mr Owens’ priority was his work rather than their marriage and home life;
- Mr Owens failed to provide Mrs Owens with love, affection and attention;
- Arguments due to Mr Owens’ mood swings; and
- Mr Owens’ derogatory and unpleasant comments about Mrs Owens in the presence of family and friends.
Mr Owens contested the petition and did not agree to the divorce as he was of the belief that the marriage had not irretrievably broken down. It is important to note that under s.1 of the Matrimonial Causes Act 1973, a petitioner must rely on one of the following five facts in order to demonstrate that a marriage has irretrievably broken down:
- unreasonable behaviour;
- two years separation with consent from the respondent;
- five years separation, no consent required; or
Contact us if you are currently in the process of filing a divorce petition and are unsure as to which of the five grounds to rely on.
As Mrs Owens relied on the two-year separation ground, both Mrs Owens and Mr Owens must agree to the divorce. However, Mr Owens did not and as such, the both parties attended a hearing at the Family Court.
Following the hearing, Judge Tolson handed down his judgment which stated that Mrs Owens’ allegations of unreasonable behaviour were “at best flimsy” and that the allegations relied upon were “at most minor altercations of a kind to be expected in a marriage”. The petition filed by Mrs Owens was accordingly dismissed.
Following the dismissal, Mrs Owens submitted an appeal to the Court of Appeal where the initial judgment was upheld as it was concluded that Judge Tolson applied the law correctly and as such there was no error in the application of the current law. The judgement given by the Court of Appeal further stated that the correct test in such cases is the mixed subject-objective test outlined in the case of Ash v Ash  Fam 135. The test outlined required the courts to ask if “any right-thinking person would 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”.
The Court of Appeal also made it clear that neither Article 8 nor 12 of the European Convention on Human Rights afforded individuals with the right to divorce. As a result of the above reasoning, Mrs Owens’ appeal was dismissed which meant that Mrs Owens would have to remain married until 2020 by which time she would have been separated from Mr Owens for five years thus no longer requiring his consent to the divorce. Fortunately, Mrs Owens’ was able to obtain permission to appeal to the Supreme Court.
The Supreme Court therefore presided over the case in July 2018 and provided a thorough analysis of the case in its’ entirety however, on 25th July 2018, the Supreme Court unanimously dismissed Mrs Owens’ appeal. Lord Wilson stated that the outcome of the appeal gives uneasy feelings due to the predicament that Mrs Owens now faces. Lady Hale further stated that case was “very troubling” however, it was not in the hands of the judiciary to change the law imposed by Parliament.
What is the consequence of Owens v Owens?
The consequence of this case is that there are now calls for immediate reform of the divorce laws in England and Wales. Due to the current law, Mrs Owens has no further choice but stay married to Mr Owens until 2020 following which she will need to file a further petition for divorce on the basis of the five-year separation rule that does not require the consent of the respondent for the divorce to be granted.
The reform of the current laws on divorce will attempt to remove the need to prove fault and current sources indicate that Baroness Butler-Sloss has already presented a private member’s bill requiring the Lord Chancellor to conduct a full review of the current divorce and separation laws.
Critics have argued that the current divorce and separation laws are outdated and do not take into account a marriage in today’s modern society. Some have further argued that implementing a no fault divorce clause will result in an increase in divorces.
It will most definitely be interesting to see the outcome of the above case and whether an actual review of the current legislation will be undertaken. However, for now the case has simply highlighted the sad and difficult predicament that the law has forced Mrs Owens into and it is equally as difficult to accept that forcibly remaining married against one’s wishes does not contravene the European Convention on Human Rights.