An interesting point of divorce law has been examined in the highest Court in the country, having travelled up through the court network. The judgement is eagerly anticipated.

The case, called Owens v Owens, could dramatically change divorce law if the previous decision of the courts is overruled.

The background

The case involves a husband (“H”) and wife (“W”) who were married in 1978 and separated in February 2015. W filed a petition for divorce in May 2015. The petition claimed that the marriage had irretrievably broken down, and the behaviour of H was said to be so bad that W could not reasonably be expected to live with him.

The petition contained examples of H’s behaviour. Amongst other things, there were accusations that H was rude about W in front of third parties, which caused her embarrassment and distress. It was argued that this behaviour, which formed part of the 27 allegations, was enough to meet the test that W could not reasonably be expected to live with H, within the meaning of s1(2)(b) of the Matrimonial Causes Act 1973 (“MCA 1973”).

The dispute

The husband defended the petition, as is possible but rare, by arguing that his behaviour was not sufficiently serious to meet the requirements of s1(2)(b) MCA 1973.

The judge at the court of first instance ruled in the husband’s favour. W appealed, and the Court of Appeal again ruled in H’s favour. W appealed once more, and the case was heard in the Supreme Court in May 2018.

Why does this case matter?

It may seem extraordinary that so far, W who is thoroughly unhappy and lives apart from H, has been unable to divorce H because he says his behaviour is not bad enough – and this is precisely why this case is so important!

For years, many people have been in support for a change to divorce law to allow for “no fault” divorce. This case shows how W could, if again unsuccessful at court, be stuck in a loveless and miserable situation because H does not believe he is at fault. And without fault being accepted, our current divorce law means that W will not be able to divorce H for another 5 years.

This torrid situation is possible because of the way the legislation is drafted. The Appeal Court judges unanimously agreed that however much they would like the law to be changed, they must interpret it as it is written; and so far, that interpretation does not bend in W’s favour.

What can be done?

Support for no fault divorce is growing but it may still be a way off. However, there is a possibility that the Supreme Court may decide that enough is enough and dramatically revolutionise the law.

Whatever happens, this case shows the necessity for thorough and well thought out drafting of the divorce petition and the importance of trying to avoid animosity between the parties. These can be achieved through good advice and guidance from your solicitor.

– Nicholas Buckle, June 2018

Further Reading

Divorce and Financial Proceedings ‘de-linked’

Seeking Agreement on Divorce Petitions can encourage collaboration

Divorcee refused ‘Second bite of the cherry’

Divorce Procedure Guide

Family Law

Paul Wild

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