Owens v Owens: Supreme Court ruling. Time for reform?
Many will feel the frustration and disappointment which Tini Owens will be feeling following the Supreme Court’s unanimous rejection on 25 July 2018 – her third round of defeat in the overall Court process – of her appeal against the refusal of her behaviour based divorce petition. Mrs Owens petitioned for a divorce from her Husband of 40 years, Hugh Owens, after leaving their family home in February 2015. She had contemplated divorce since 2012 when she had an affair. Husband opposed the divorce, and Mrs Owens was compelled to take her case right through the appeal process.
Some hoped that the Supreme Court would in its decision make the law clear or, appreciating that legislation change is for Parliament, it would define the level, type and effect of alleged behaviour required for this type of divorce to be granted. In the context of defended divorce suits being very rare, this high profile decision delineates distinctly and dramatically the reach of the Court’s evaluation and application of the legal test to individual circumstances of a case and into the media resounding and escalating calls for no-fault divorce.
The Supreme Court Judges considered extensive opposing legal argument on the definition and requirements of behaviour-based divorce, around concepts of “unreasonable” behaviour and “fault” where the original Judge had found the marriage had broken down but that Mrs Owens’ examples of Husband’s behaviour were “flimsy and exaggerated”. It was argued that by the legislation Mrs Owens was to show that the marriage had broken down irretrievably and that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. Interestingly, the legislation does not refer to “unreasonable behaviour”. Mrs Owens’ claimed that the marriage was “loveless and has broken down”. Mr Owens denied the allegations, claiming that if their marriage had irretrievably broken down it was because she had an affair, or was “bored”. He claimed he had “moved on” and “forgiven” his wife for the affair and that as a couple they still had a “few years” to enjoy. Supreme Court president Lady Hale said she found the case “very troubling” but it was not for judges to “change the law” only to interpret and apply the law. Lord Wilson said the case was dismissed “with reluctance” and that it was a question for Parliament. Headlines have run with references to divorce being refused in an “unhappy marriage”, and for the moment this remains Mrs Owens’ situation as the Court’s decision means that she must stay married until 2020 when, provided she has continued to live separate and apart from Mr Owens and to view the marriage as broken down irretrievably, she will be able to apply to the Court on the basis of over 5 years’ separation.
If you would like further information and advice on this issue please contact the Family and Divorce team on 0203 814 2020.