The Owens case and the future of divorce update

When Mrs Owens decided to petition her husband of over 35 years for divorce, based on his unreasonable behavior she received the advice given across the country: that it is considered to be good practice to draft a petition in neutral and anodyne terms. This is generally considered to be best for the purposes of ensuring that the proceedings get off on the right foot and are not unnecessarily acrimonious.

Mrs Owens could not have known that her husband would defend the petition leading to contested proceedings to decide if her husband had behaved unreasonably. Even more unexpectedly the Court refused to grant her a divorce on the basis that the Court did not accept that Mr Owens had behaved unreasonably. This decision would have been fuelled by the flimsy nature of the particulars of behaviour (being neutral and anodyne).

This was a highly unusual decision which took the entire family law establishment by surprise, as the notion of unreasonable behaviour has largely been considered to be subjective and therefore very difficult to dispute if the person on the receiving end says that they felt it was unreasonable.

It has meant that the idea of drafting a neutral and anodyne petition may carry with it certain risks, if the petition is then contested by the other party. There may now be more impetus to draft more weighty particulars of unreasonable behaviour, which may in turn cause the divorce process to become more acrimonious than it needs to be.

Mrs Owens was then granted permission to appeal to the Supreme Court against the decision of the Court of Appeal and there was hope that there would be a return to the normal course, with Mrs Owens being granted her divorce. It was believed that this must be right in circumstances where one of the Court of Appeal judges hearing the case, Lady Justice Hallett, herself conceded in her judgement that ‘on any view the marriage is over’.

The basis of Mrs Owens’ appeal was that unreasonable behaviour should not be interpreted as the behaviour was such that the petitioner could not reasonably be expected to live with the respondent, but that the effect of the respondent’s behaviour on the petitioner was such that the petitioner could not reasonably be expected to live with the respondent.

The appeal hearing was heard by the Supreme Court in May 2018, with judgment being given on 25 July 2018. Unfortunately, the Supreme Court unanimously dismissed the appeal, despite Lady Hale indicating that she ‘reluctantly’ agreed that the appeal should be dismissed, and another Supreme Court judge stating that she reached her conclusion with ‘no enthusiasm whatsoever’.

Lord Wilson gave the majority judgment and he did not accept Mrs Owens’ argument that the lower courts had misinterpreted the meaning of unreasonable behaviour. He mentioned that there were three stages in deciding what constituted as unreasonable behaviour. The first of which is that the court needs to determine what the respondent did/did not do by reference to the allegations of unreasonable behaviour in the petition (which is a factual point), secondly, the court must assess the effect of the behaviour on this particular petitioner in all of the relevant circumstances (this would be subjective to that particular person) and thirdly, evaluating whether due to the first and second point, it would be unreasonable to expect the petitioner to continue to live with the respondent (this is deemed on an objective basis).

Despite the ruling, Lord Wilson confirmed that he had ‘uneasy feelings’ about this case with Lady Hale also commenting that she found the case ‘very troubling’.

It seems that the dilemma the justices faced was being in danger of changing the law by their interpretation of the law. They all seem to unanimously agree that it is not up to them to shift the interpretation of the law, as Mrs Owens’ legal team had suggested, but that it is up to Parliament to decide to introduce a ‘no-fault divorce’ system.

It comes as no surprise that this ruling has disappointed many people, especially with the increased support of ‘no-fault divorce’. There seems to be common agreement that there should not be an element of assigning blame in order to get a divorce, as the only purpose this serves is causing increased conflict in what is already an extremely difficult time in one’s life. The increased animosity can then also affect the emotional and psychological wellbeing of any children of the marriage, through no fault of their own.

Due to the Supreme Court ruling, Mrs Owens now must wait until February 2020 to be able to file for divorce again, citing 5 years separation, which does not require Mr Owens’ consent. Some may argue that there is an intrusive element of Parliament’s powers to intervene in an individual’s life by forcing someone to remain married, when they have made it perfectly clear that they do not want to.

On the back of this case many family practitioners have called more strongly for the introduction of no fault divorce. The introduction of a faultless divorce scheme has long been discussed and there were almost legislative changes to bring this into effect in the 1990’s. Public policy has historically dictated that it should not be too easy to divorce, but the upshot of this is that many people end up trapped in unhappy marriages. This can itself be very damaging within a family, particularly where there are children who are exposed on a daily basis to a toxic relationship. On the other side of the coin some would argue that no fault divorce will result in a higher rate of divorce and therefore more economic hardship with single parent families struggling to cope.

CONTACT MARILYN

If you would like more information or advice relating to this article or a Family law matter, please do not hesitate to contact Marilyn Bell on 01727 798066 or 07725 372256. 

© SA LAW 2020

Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.