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. 

Read our latest Divorce & Family Law Views and Insights
Good coverage in private law children and financial work, so they are able to offer a full service to clients.
The Legal 500
Divorce and family law red chair SA Law
Views & Insights
No-fault divorce: It’s time to finally end the blame game

Divorce specialist, Julie Cohen, discusses ‘no-fault’ divorce law, which is now due to come into force in April 2022.

Read More
Divorce and family law red chair SA Law
Views & Insights
Lockdown is easing - what are the latest rules for families with children?

As the Coronavirus lockdown restrictions begin to ease in the UK our Family experts look at how the new government roadmap will effect families, parents…

Read More
Child holding hands with parent - SA Law's Dignified Divorcee
Views & Insights
The National Lockdown and Child Arrangements FAQ

Simran provides answers to FAQs about child arrangement difficulties which may arise because of the national lockdown.

Read More
Child holding hands with parent - SA Law's Dignified Divorcee
Views & Insights
Tier 4 – Can I still see my children?

Can parents continue to spend time with their children in the usual way at Christmas, if they do not live in the same household whilst in Tier 4?

Read More
SA Law Christmas tree
Views & Insights
Christmas Bubbles and the impact on children of separated parents

The unprecedented Covid-19 pandemic has had an impact on the everyday life of virtually every person in the world. Unfortunately England is no exception.…

Read More
SA Law Personal Services Red Door
Views & Insights
Considerations for moving or selling your home following separation or divorce during the Covid-19 pandemic

During the Covid-19 pandemic there are even more ambiguities to contend with when selling a home, particularly if you are also separated or divorcing.…

Read More
I found SA Law to be very organised and – importantly for me – they were very transparent about the costs, something I found very refreshing from a law…
The Legal 500

© SA LAW 2021

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.