by Andrew Smith, Associate Solicitor, Family Law Team
AJSmith@LawBlacks.com, 0113 3222807, @AndyLawBlacks
Last month, the Supreme Court (the highest Court in England and Wales) has decided that Mrs Owens has to stay married to her husband. Mrs Owens has been seeking a divorce for 3 years.
Mrs Owens’ journey
Mr and Mrs Owens married in 1978. Mrs Owens filed her petition for divorce in May 2015 in which she sought a divorce based on the (only) ground that the “marriage had irretrievably broken down”. Mrs Owens relied on the fact that Mr Owens had “behaved in such a way that she could not reasonably be expected to live with him”, i.e. his unreasonable behaviour. Mr Owens defended the divorce as he denied that the marriage had irretrievably broken down and Wife’s allegations of unreasonable behaviour.
At the first court hearing the Judge decided that whilst the Wife had convinced him that the marriage had irretrievably broken down she had not convinced him that the marriage had broken down due to Mr Owen’s unreasonable behaviour. The judge said that the allegations just amounted to “minor altercations which are expected in a marriage” such as, sarcastic comments and arguing in public.
Mrs Owens appealed this decision. In order to succeed the Court of Appeal must have found that the lower court was wrong in law, not just that they would have decided differently. The Court of Appeal could not rule that the first judge had incorrectly applied the law and dismissed her appeal. Mrs Owens appealed again, hoping that the current law could be interpreted in a way which allowed the Supreme Court to overturn the Court of Appeal’s decision
Resolution, an organisation of family lawyers, successfully applied to intervene in the proceedings, putting forward an argument that the family court has been prevailing under a linguistic error for many years, such that the court should not place emphasis on whether or not Mr Owens’ behaviour was “unreasonable” and instead that the law requires behaviour such that Mrs Owens (the petitioner) cannot reasonably be expected to live with Mr Owens (the respondent). Therefore, the law should look from the petitioner’s point of view and whether Mrs Owens should be expected to live with the type of behaviour displayed by Mr Owens.
After 3 years, and a very costly legal battle, the Supreme Court has reluctantly decided that the law cannot be interpreted in this way and has upheld the Court of Appeal’s decision. The estranged couple are to stay married.
Time for reform?
Resolution and other practitioners have been campaigning for new “no fault” divorce laws. Since the 1970s the law has been that if you want a divorce one person has to allege that the other person is at fault; because of their unreasonable behaviour (like in Owens) or adultery. The only facts which mean you do not have to point blame are if you have been separated and living apart for 2 years (with your spouse’s consent) or if you have been living separate and apart for a period of 5 years (without consent).
The majority of divorces are undefended however because one party has to allege fault and the other party has to accept blame, even the most amicable break up can become fraught. This obviously causes unnecessary tension and conflict in an already difficult situation for couples and families.
Hopefully, the example of Mr and Mrs Owens will help strengthen the campaign for reform and parliament will see that a change needs to occur to prevent this injustice from happening again.
What can Mrs Owen’s do now?
For now, Mrs Owens will have to stay in a loveless marriage. In order to obtain her divorce, she will have to wait until they have been separated for 5 years. Mrs Owens will not need Mr Owens’ consent in this situation. However, after she has finally been granted her divorce it is unlikely that Mrs Owens will be able to truly move on as the couple’s finances will then need to be dealt with.
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