On 17 May 2018, the Supreme Court (being the highest Court in England & Wales) is due consider the wife's appeal against the Court of Appeal judgment in the divorce case of Owens v Owens. The case made headline news last year as a result of both the High Court and the Court of Appeal refusing to grant Mrs Owens a divorce. The hearing is scheduled to last one day and will be heard by five Supreme Court judges namely Lady Hale, Lord Mance, Lord Wilson, Lord Hodge and Lady Black.
Mr and Mrs Owens were married in January 1978. They were married for 37 years when Mrs Owens left the family home in February 2015 which resulted in their separation. The have two adult children.
In May 2015, Mrs Owen's filed for divorce contending that the marriage had irretrievably broken down. The petition was based on Mr Owen's unreasonable behaviour which Mrs Owens argued meant that she could no longer reasonably be expected to live with her husband. She gave 27 examples of his behaviour which included making derogatory and critical remarks about her to others, prioritising his work over her, having frequent mood swings which led to regular arguments, no longer showing her love and affection or supporting her role as a homemaker. Mr Owens took the unusual step of defending the divorce stating that he had not behaved in such a way that Mrs Owens could reasonably be expected to live with him. The High Court agreed with Mr Owens and dismissed Mrs Owen's divorce petition. The judge considered the allegations and ultimately refused to grant the divorce, describing the examples as “minor altercations of a kind expected in a marriage”. The Court of Appeal also took the same view. These decisions of both Courts are remarkable particularly bearing in mind that Mrs Owens gave 27 examples of what she perceived to be unreasonable behaviour. They also highlight the need for reform in this area of the law.
The law as it presently stands in England and Wales does not allow one spouse to unilaterally decide to divorce because they are in an unhappy marriage. Instead, the spouse that wishes to leave the marriage has to allege “unreasonable behaviour” and give examples to the court of such behaviour to show to the Court that the marriage is irretrievably at an end. Alternatively, if they do not wish to apportion “blame” to the other spouse and there is no adultery, then they must wait two years where a divorce can be granted if both spouses consent to it. If both spouses do not consent, then the spouse who wishes to divorce has to be separated for 5 years from their spouse before being entitled to a divorce.
Therefore if Mrs Owens is not successful in the Supreme Court, then she will have to wait 3 years before she can divorce on the basis of five years separation without the consent of Mr Owen's. This would be very harsh in circumstances where there is clearly no scope for reconciliation between the parties. She will be 70 before she leaves her marriage.
This case highlights why reform is so desperately needed. Family Law professionals and organisations have been campaigning for the introduction of new law for many years. In 1996 the Government tried to introduce “no fault divorce” however the legislation was subsequently repealed in 2001.
If Mrs Owen's is successful this would strengthen calls for the Government to introduce "no fault divorce". This in turn would lead to less confrontation between couples which is particularly important when children are involved.
Lucy Loizou is a Partner with the International Family Law Group LLP. She undertakes complex financial and children disputes and has worked on a number of cases involving high net worth issues often involving an international element.
The International Family Law Group LLP
© 16 May 2018