The Supreme Court’s decision (Owens v Owens) to deny a woman the option to divorce her husband after 40 years of marriage has brought the case for a ‘no fault’ split back into the public arena.
Judges admitted they had dismissed Tini Owens’ application with “reluctance” and urged Parliament to review the current divorce laws.
One of our family law experts, Associate Harbinder Gosal, looks at what this means for future separating couples:
In the UK, to get divorced you have to show that a marriage has broken down irretrievably which can be evidenced by five facts – adultery, unreasonable behaviour, desertion, if you’ve been living apart for two years and both parties agree, or you’ve been separated for at least five years, in which case your former partner doesn’t have to consent to a divorce.
Hugh Owens doesn’t consent which is why his wife Tini will now have to wait until 2020 until she can complete the legal split from her husband.
This is a groundbreaking case. Mrs Owens was challenging earlier rulings by the Court of Appeal and the original trial judge, which had agreed there should be no divorce despite the unhappy relationship because she couldn’t provide enough evidence in support of the fact of her husband’s alleged unreasonable behaviour.
Both courts had found that the husband’s behaviour had been tantamount to ‘minor altercations of a kind to be expected in a marriage’. And it was a unanimous 5-0 verdict from the Supreme Court judges in agreement.
The importance of this decision cannot be underestimated; not least because neither the Supreme Court, nor its previous form the House of Lords, has considered the behaviour fact before. The court took the opportunity to confirm the long line of authorities setting out the correct test since 1972.
The consequence of this judgment is that courts, lawyers and divorcing couples must ensure that a petitioner’s case contains adequate particulars of behaviour by which it can be said that the petitioner cannot reasonably be expected to live with the respondent.
But lawyers calling for a ‘no fault divorce’ regime may take comfort from Lord Wilson’s view that in moving with the times, the law nowadays sets the bar for a grant of divorce based on behaviour at a low level.
Others will see the decision as a blow to those who are simply in an unhappy marriage and may feel trapped in a marriage as they may not meet the criteria of what amounts to ‘unreasonable behaviour’.
Although lawyers are currently encouraged to draft divorce petitions in as non-contentious terms as possible to reduce friction during the separation process, any divorce, however amicable, can be a difficult procedure.
A no fault divorce would certainly make it easier for people to work together, especially where children are involved, outside a culture of blame.
It is now down to Parliament to decide whether it will proceed with a change in the law to introduce a no-fault divorce, which we would support. Until then, we will make every effort to reduce conflict and acrimony within the present system for the couples we work with.
* FBC Manby Bowdler's Family Team is recognised as one of the leading Family Law advisors in the region by leading legal directories Legal 500 and Chambers UK.
For more information, contact Harbinder on 01902 392420 or email firstname.lastname@example.org.