Last week, the Supreme Court heard the appeal of Owens v Owens, a contested divorce case which has revived calls for no-fault divorce. Olivia Bailey, trainee solicitor in the family department at Harrison Drury explores further
Mr and Mrs Owens were married in 1978 and separated in February 2015. In May 2015, Mrs Owens issued divorce proceedings, however a decree was refused by Judge Tolson QC in 2016.
Mrs Owens went through the Court of Appeal, but it was ruled that the court couldn’t interfere with a lower court’s decision to refuse a decree nisi, even though the judge had correctly found that the marriage had broken down.
The Law of Divorce
The sole ground for divorce is that the marriage has broken down irretrievably. This is proved by using one of five facts. In this instance the fact of unreasonable behaviour was cited by Mrs Owens, arguing that Mr Owens had behaved in such a way that she cannot reasonably be expected to live with him. It was the failure to provide examples of Mr Owen’s behaviour that led to the refusal to grant a divorce.
As well as unreasonable behaviour there is the fact of two years separation with consent. However, Mrs Owens can’t rely on this fact as Mr Owens does not consent to the divorce. The only other option open to Mrs Owens is to wait for 5 years separation in 2020, when she will no longer require the consent of Mr Owens to divorce.
Mrs Owens argues that the law in relation to unreasonable behaviour and what needs to be proved is misleading. It is not the respondent’s behaviour that needs to be objectively unreasonable, the question is whether it is reasonable to expect the petitioner herself to live with the person who has behaved in that way.
The trial judge and the judges at appeal found that the examples provided of Mr Owens behaviour were “minor altercations of the kind to be expected in marriage.” Therefore, the courts have interpreted the law in such a way that the respondent’s behaviour must meet a certain threshold before the petitioner is entitled to a divorce.
While Mrs Owens argues that the court must consider whether the behaviour is something that she herself can reasonably be expected to live with. It’s not for the court to decide whether Mr Owens’ behaviour is blameworthy or not. Mrs Owens’ barrister has also argued that the purpose of the Matrimonial Causes Act 1973 is to allow courts to end marriages that had irretrievably broken down, consideration of the facts are simply five gateways to the conclusion.
Mr Owens argues that the Supreme Court should maintain the status quo. His barrister argues that it must be the respondent’s behaviour that meets a certain level of unreasonableness. If the court were to view the law as Mrs Owens suggests, it would add a subjective element to the objective test. As such, the Supreme Court would be making law, rather than interpreting it. To make law is the role of Parliament.
It could be argued that to interpret the law as Mrs Owens suggests, would be to allow divorce on demand. One party could claim that they cannot reasonably be expected to live with the other and therefore the marriage has irretrievably broken down.
The interveners – Resolution
Resolution, the national family lawyers’ organisation, has been granted permission by Lady Hale to give a statement to explain what it believes the law is. Resolution argue that the lower courts have misinterpreted the test in the past and therefore the Supreme Court can interpret the statute in line with current times. The Supreme Court would not be making new law and a judgment in favour of Mrs Owens would simply offer guidance as to the correct interpretation of the Matrimonial Causes Act 1973.
The difficulties experienced by Mrs Owens in obtaining her divorce has renewed calls for a new system of no-fault divorce to be introduced. Resolution has been calling for such a system for decades, and it is now supported by the Marriage Foundation, the president of the family division and Lady Hale herself.
Such a system would allow one of the parties to simply notify the court, followed later by a confirmation by the other or both parties that the marriage has broken down. This system would reduce conflict and confrontation between clients and their ex-partners and help to reach amicable agreements regarding child arrangements. A great number of people and organisations await with interest the judgment of the Supreme Court.
Harrison Drury have a specialist team of family law experts offering advice on issues surrounding divorce and other family law matters. For more information please contact Olivia Bailey on 01772 428535.