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Owens v Owens: Has the time finally come for a ‘no-fault divorce’ system?

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Wife must remain in unhappy marriage, Supreme Court rules this week

Simple unhappiness is not valid grounds for divorce concludes the reluctant five-justice panel of the Supreme Court in Owens v Owens on Wednesday.

The case climbed its way up to the Supreme Court after a six-year dispute. Now, Mrs Owens has been told that she must remain in her 40-year-long marriage despite feeling “unhappy, unappreciated and upset”.

Mr and Mrs Owens, aged 80 and 60 respectively, have been married since 1978 and have two children. They lived together in the matrimonial home, a manor house in Gloucestershire until Mrs Owens had an affair in 2012. She has been living in a nearby property since 2015.

The initial petition for divorce was filed back in 2012 based on section 1(2)(b) of the Matrimonial Causes Act 1973. Mrs Owens claimed that the marriage had broken down irretrievably. Allegedly, Mr Owens’ behaviour was such that she could not reasonably be expected to live with him. Mrs Owens presented four allegations: that Mr Owens had prioritised his work, that he treated her without love or affection, that he had been moody and argumentative, and that he had disparaged her in front of others. Mr Owens denied all allegations, attributing the breakdown of the marriage to her affair.

Either way, Mrs Owens was unhappy with her marriage. So why did her petition not succeed? The Supreme Court even acknowledged that “almost every petition under the subsection will succeed… the petitioner will be encouraged at the hearing to give no more than brief evidence in relation only to a few allegations of behaviour”.

Lord Wilson said in his judgment that such cases revolve around an evaluation as to whether it would be unreasonable to expect the petitioner [Mrs Owen] to continue living with the respondent [Mr Owen]. In the first instance, the Court of Appeal determined that such an expectation was not unreasonable in the Owens case. It concluded that “all 27 of the pleaded examples of behaviour were at best flimsy” and that Mrs Owens, being “more sensitive than most wives”, had “significantly exaggerated their context and seriousness.” The Supreme Court did not contest this conclusion and the appeal was unanimously dismissed.

Mrs Owens must now remain married to Mr Owens for at least another two years. She could then file a second petition, this time under section 1(2)(e), by demonstrating that they have “lived apart for a continuous period of five years.”

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In today’s world, it appears quite unfair for an unhappy spouse such as Mrs Owens to be refused a divorce. Lady Hale, president of the Supreme Court, commented in her judgment that she found this to be a “very troubling case” and that unfortunately “it is not for [the Supreme Court] to change the law laid down by parliament — our role is only to interpret and apply the law that parliament has given us.” Lord Wilson further stated that “parliament may wish to consider whether to replace” the current law.

Following the landmark decision, family lawyers have been quick to criticise the current law of divorce and have called for urgent reform.

Nigel Shepherd, former chair of Resolution, a national organisation of family lawyers committed to non-confrontational divorce, commented:

“In this day and age, it is outrageous that Mrs Owens — or anybody– is forced to remain trapped in a marriage, despite every judge involved in the case acknowledging it has come to an end in all but name… It should not be for any husband or wife to ‘prove’ blame as the law requires many to do — this is archaic, creates needless conflict and has to change.”

Jane Robey, chief executive of National Family Mediation also called for change to these “outdated laws”. Indeed, the Matrimonial Causes Act does in fact date back to the 1970s, almost 50 years ago. The five facts (adultery, unreasonable behaviour, desertion, two years separation and five years separation) required to prove fault are arguably quite antiquated and have no real place in today’s society. Baroness Butler-Sloss, former president of the family division, said:

“The present law on divorce is not fit for purpose. Most judges do not apply the law as set out in the 1973 legislation; in order to get a quick divorce petitioners have to make allegations of unreasonable behaviour by the other spouse which can be very wounding for the respondent… and extremely upsetting for the children.”

Could it be time for a shift to the ‘no-fault divorce’ system which has long been advocated? One could argue it would alleviate the need for blame and for couples to go to extensive measures just to satisfy one of the five facts for divorce.

Baroness Butler-Sloss introduced the Divorce (etc.) Law review bill in the House of Lords which had its first reading on 18 July, only a week before the Supreme Court ruling. The bill prompts for a review by the Lord Chancellor of the current law, suggesting there be a sole ground for divorce: the irretrievable breakdown of the marriage and a simple application to the court. A subsequent confirmation of the application would suffice, without the need for additional evidence of any fault.

If the bill passes, many unhappy spouses like Mrs Owen will be able to divorce, without having to go through a six-year dispute or having to prove any fault. It’s time for change and parliament must sit up and take notice.

Thomas McGrath is a third year undergraduate English and European law student at Queen Mary, University of London.

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17 Comments

The Court of Pie Powders

A surprise, though a very welcome one, that the UKSC did not attempt to sidestep Parliament here. This is a reform that only Parliament can enact, though with the current Brexit obsession I wouldn’t hold my breath for anything soon.

In the meantime, more should also be done to ensure couples know the consequences of entering into a marriage, both in terms of ability to divorce and the financial implications.

Anonymous

No. Undermines the sanctity of marriage

Anonymous

Agreed. Divorce at will would hugely undermine society. And the many headlines on this case, such as “Court makes unhappy woman stay in marriage”, are misleading, because they suggest that Mrs Owens was unhappy due to the conduct of her husband and it would not be right for the law to force her to remain with him in those circumstances. However, that is a false statement of the position, in light of the trial judge’s findings. Like many claimants, Mrs Owens failed to prove her case at first instance and the appellate courts refused to interfere with the trial judge’s findings of fact. The simple truth is that, by reason of those findings, Mrs Owens cannot contend that her husband’s behaviour made it unreasonable for her to remain married to him. So she can say as loudly as she likes that she is unhappy and he is to blame, but such claims have no value. If she is unhappy, that has nothing to do with her husband. As the judge put it, her unhappiness is due to other causes, and Mrs Owens cannot now contend otherwise.

Anonymous

No – the judgment at first instance found that the husband’s conduct wasn’t unreasonable, not that it wasn’t making Mrs Owens unhappy (the latter was not the test). Nothing that happened at trial means that “If she is unhappy, that has nothing to do with her husband.” What a ridiculous statement.

Anonymous

No: unreasonable conduct doesn’t come into it – read the judgment. At issue was whether the husband’s conduct was such that the wife could not reasonably be expected to live with the husband. The judge found as a fact that there was no such conduct and that the wife’s decision to live apart from the husband had “other causes”. The clear inference from all this is that the wife’s alleged unhappiness had nothing to do with the husband’s behaviour. The reality is that she simply fancied a change of scene, having met someone else. But the law (rightly) does not allow you to divorce at will.

Anonymous

If only I could just end my training contract because I felt unhappy, unappreciated and upset

Anonymous

Slightly different kettles of fish though, aren’t they?

JD Partner

In fairness, I expect more from my trainee than I do my wife.

Anonymous

Both are soul-sucking, unrewarding and degrading endeavours

Anonymous

But you can end your TC for this reason….

Anonymous

I disagree (in part) with this argument, as no one seems to be considering the ancillary relief consequences of a divorce. Marriage affords all kind of legal protections and privileges, not least the power of the Courts under the 1973 Act to make financial awards from the parties assets.

Upon divorce, the parties can ask the Court to make far reaching financial awards. There is no other jurisdiction in which the parties property rights are infringed to the extent that they can be in a financial remedies case (including depriving one party of all their assets!). This is justified because individuals choose to get married and ‘sign up’ to the fact that their assets become liable to redistribution.

If Marriage can simply be ended on a no-fault basis, this subjects individuals to significant liability in circumstances where one party does not wish to get divorced. Our current system requires a party to prove grounds as to why they should be allowed to divorce. This is right – especially where the parties might then expect the Court to make wide ranging and draconian orders redistributing assets.

This could be solved by amending the MCA 1973 to include a provision that, in the event of a “no fault” divorce, the starting point will be that no order should be made regarding finances unless exceptional circumstances exist (by way of modified s25 criteria). The parties already have rights extant in the law of trusts to deal with their property and bank accounts. “Exceptional circumstances” could include a wide range of factors suited to unusual cases.

Anonymous

No other civil jurisdiction*

Anonymous

Agreed. Excellent analysis.

The Bar Necessities

The flaw in this argument that the ‘fault’ in the breakdown of the marriage is not, even under the current rules, connected to the financial remedies application in any event. For example (and at risk of being gendered), imagine if a wife cheats on her husband. That adultery can and probably will form the basis of the husband’s petition. The wife, sensibly, admits it. This will not have an impact on the wife’s ability to bring a claim for financial orders, nor would it be taken into account when deciding how to divide assets.

I think the limited weight given to pre-nups is something that discourages marriage. I suspect a number of successful people are reluctant to marry because their spouse, if there was separation, would probably have a good chance to relieve him/her of many of the assets they worked hard to build up over the years (particularly if there are children).

It is one of the great ironies that someone who is successful and marries stands a reasonably high risk of having to maintain their ex-spouse for a substantial portion of the rest of their life. Whereas if one merely does all the stuff that one does in marriage e.g. live together, have kids etc but without signing the Register, then the liability to support (whether by maintenance or provision of housing) ends under Sch 1 Children Act and/or the Child Support Act when the children reach 18, or at latest finish full-time secondary education.

Thus, the limited weight given to pre-nups (ostensibly on the basis they leave the economically weaker party with inadequate support) reduces the likelihood of marriage, and reduces the support available to the economically weaker party further.

Anonymous

TL/DR. Short answer to the title: yes.

Let people undo bad decisions and lawyers bleed them dry in the process.

You never learn a lesson unless it comes with a hefty price tag.

Anonymous

“Lady Hale, president of the Supreme Court, commented in her judgment that she found this to be a “very troubling case” and that unfortunately “it is not for [the Supreme Court] to change the law laid down by parliament — our role is only to interpret and apply the law that parliament has given us.” Lord Wilson further stated that “parliament may wish to consider whether to replace” the current law.”

Meanwhile in the Not-Really-Supreme Court….

Pandering to parliamentary supremacy again. At least we all know today’s MPs are competent and fair when considering the needs of a modern society, right?

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

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